IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Bernard A. Tilton,

Plaintiff,

v. Case No. 2:12-cv-408

Carolyn W. Colvin,

Acting Commissioner of

Social Security,

Defendant.

ORDER

Plaintiff, Bernard A. Tilton, brings this action under 42

U.S.C. §§ 405(g) for review of a final decision of the Commissioner

of Social Security (“Commissioner”) denying his application for

disability insurance benefits. This matter is before the court for

consideration of defendant’s June 14, 2013, objections to the June

6, 2013, report and recommendation of the magistrate judge,

recommending that the court remand this action for further

proceedings before the administrative law judge (“ALJ”). For the

reasons stated below, the court overrules defendant’s objections

and adopts the magistrate judge’s report and recommendation.

I. Standard of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make 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). Upon review, the

court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

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The court’s review “is limited to determining whether the

Commissioner’s decision ‘is supported by substantial evidence and

was made pursuant to proper legal standards.’” Ealy v. 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)); see also,

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the

reviewing court might arrive at a different conclusion. Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence

exists when ‘a reasonable mind could accept the evidence as

adequate to support a conclusion [and] . . . presupposes that there

is a zone of choice within which the decision-makers can go either

way, without interference by the courts.’” Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation

omitted). Even if supported by substantial evidence, however, “‘a

decision of the Commissioner will not be upheld where the

[Commissioner] 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).

II. Defendant’s Objections

Defendant objects to the finding of the magistrate judge that

the ALJ did not properly determine the weight to be given the

opinion of Dr. Jeffrey Williams, D.O., plaintiff’s treating

physician.

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The Commissioner has implemented regulations concerning how

medical opinions, including those of a treating physician, are to

be weighed. The Commissioner has also issued a policy statement,

Social Security Ruling 96-2p, 1996 WL 374188 (Soc. Sec. Admin. July

2, 1996), to guide an ALJ’s assessment of a treating-source

opinion. An opinion from a medical source who has examined a

claimant is generally given more weight than one from a source who

has not performed an examination. 20 C.F.R. §§404.1502,

404.1527(c)(1). An opinion from a medical source who regularly

treats the claimant is afforded more weight than one from a source

who has examined the claimant but does not have an ongoing

treatment relationship. 20 C.F.R. §§404.1502, 404.1527(c)(2).

Treating-source opinions must be given “controlling weight”

if: (1) the opinion “is well-supported by medically acceptable

clinical and laboratory diagnostic techniques”; and (2) the opinion

“is not inconsistent with the other substantial evidence in [the]

case record.” 20 C.F.R. §404.1527(c)(2). The term “substantial

evidence” denotes a quality of evidence amounting to “such relevant

evidence as a reasonable mind would accept as adequate to support

a conclusion that is contrary to the conclusion expressed in the

medical opinion.” Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *3. 

The conflicting substantial evidence “must consist of more than the

medical opinions of nontreating and nonexamining doctors.” 

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013)

Even if the opinion of the treating doctor does not meet these

“controlling weight” criteria, this does not mean that the opinion

must be rejected; rather, it “may still be entitled to deference

and be adopted by the adjudicator.” Soc. Sec. Rul. No. 96-2p, 1996

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WL 374188 at *1. If the Commissioner does not give a treatingsource opinion controlling weight, then the opinion is weighed

based on factors such as the length, frequency, nature, and extent

of the treatment relationship, the treating source’s area of

specialty, and the degree to which the opinion is consistent with

the record as a whole and is supported by relevant evidence. 

C.F.R. §404.1527(c)(2)-(6); Gayheart, 710 F.3d at 376. An opinion

which does not warrant controlling weight “still must be weighed as

the regulations prescribe, with no greater scrutiny being applied

to [the treating physician’s] opinions than to those of the

nontreating and nonexamining sources.” Gayheart, 710 F.3d at 380.

If a treating source opinion is not deemed controlling,

opinions from nontreating and nonexamining sources must be weighed

based on the examining relationship or lack thereof,

specialization, consistency and supportability. §404.1527(c);

Gayheart, 710 F.3d at 376. Policy also requires ALJs to consider

opinions by state agency physicians and consultants and to “explain

the weight given to these opinions in their decisions.” Soc. Sec.

Rule No. 96-6p, 1996 WL 374180 at *1 (Soc. Sec. Admin. July 2,

1996).

The Commissioner is required to provide “good reasons” for

discounting the weight given to a treating-source opinion. 

§404.1527(c)(2). These reasons must be “supported by the evidence

in the case record, and must be sufficiently specific to make clear

to any subsequent reviewers the weight the adjudicator gave to the

treating source’s medical opinion and the reasons for that weight.” 

Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5; Rogers v. Comm’r of

Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). This procedural

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requirement “ensures that the ALJ applies the treating physician

rule and permits meaningful review of the ALJ’s application of the

rule.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.

2004). The Sixth Circuit has stated that it will not hesitate to

remand when the Commissioner has not provided good reasons for the

weight given to a treating physician’s opinion. Gayheart, 710 F.3d

at 380.

As noted by the magistrate judge, documents in the record

reflect that Dr. Williams began treating plaintiff on January 25,

2002. R. 255-56. On January 14, 2004, plaintiff complained about

problems sleeping, and on January 5, 2005, Dr. Williams noted that

plaintiff had sleep apnea. R. 253-54. On May 8, 2006, and June

14, 2006, plaintiff was seen by Dr. Williams for chronic left wrist

carpal tunnel syndrome and chronic low back pain. R. 217-218. On

November 8, 2006, Dr. Williams diagnosed plaintiff as having

chronic low back pain, sleep apnea, hyperlipidemia and

osteoarthritis. R. 216. On March 7, 2008, plaintiff saw Dr.

Williams again for low back and elbow pain. R. 312. On May 11,

2009, Dr. Williams diagnosed plaintiff as having sleep apnea,

narcolepsy, chronic low back pain, chronic knee pain, chronic

tenosynovitis of the hands and wrist, and hyperlipidemia. R. 309. 

On September 30, 2009, Dr. Williams completed a medical source

statement documenting his opinion as to plaintiff’s limited

capacity to stand, walk, sit, lift, and use his hands and feet. R.

328-331.

In his decision issued on May 13, 2010, the ALJ referred to

isolated portions of Dr. Williams’ treatment records. The ALJ

noted that on May 8, 2006, Dr. Williams, plaintiff’s primary care

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physician, prescribed Percocet for low back and wrist pain. R. 17. 

The ALJ indicated that plaintiff had been prescribed periodic

prescriptions for the narcotic pain reliever Percocet for low back

pain, and that plaintiff “only briefly mentioned this problem to

Dr. Williams in May 2009.” R. 13. The ALJ also summarized the

medical source statement completed by Dr. Williams on September 30,

2009. R. 17-18.

In weighing the opinion evidence, the ALJ noted that

in the present case, the opinion assessed by Dr. Williams

in September 2009 is work prohibitive. This opinion is

not supported by the medical evidence of record and is so

extreme that it is not worthy of belief. The possibility

always exists that a doctor may express an opinion in an

effort to assist a patient with whom he or she

sympathizes for one reason or another. Another reality

which should be mentioned is that patients can be quite

insistent and demanding in seeking supportive notes or

reports from their physicians, who might provide such a

note in order to satisfy their patient’s request and

avoid unnecessary doctor/patient tension. While it is

difficult to confirm the presence of such motives, this

treating source seems to be particularly sympathetic with

the claimant.

R. 19-20. The ALJ then went on to accept the opinions of the state

agency nontreating medical sources, noting that they “are

consistent with and are well supported by the objective medical

evidence and accepted as an accurate representation of the

claimant’s status.” R. 20.

In his report and recommendation, the magistrate judge noted:

Here, the administrative law judge failed to provide

“good reasons” for either prong of the test for

controlling weight. The administrative law judge made

conclusory statements without any reference to supporting

evidence. Although he asserted that Dr. Williams’

[opinion] was not supported by the medical record, he did

not identify what evidence in that record led him to that

conclusion.

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Doc. 16, p. 20.

The magistrate judge further concluded that the ALJ erred by

ending his evaluation of Dr. Williams’ opinion prematurely, instead

of going on to determine what weight to assign each source,

including Dr. Williams’ opinion, using the factors in §404.1527(c). 

Doc. 16, p. 21. The magistrate judge noted plaintiff’s arguments

that the opinion of Dr. Williams should be controlling because: (1)

Dr. Williams had treated plaintiff for his impairments; (2) Dr.

Williams had access to treatment notes and test results of the

consultative physicians; and (3) his opinion was based on his

lengthy treatment of plaintiff from before the alleged onset of

disability through the hearing before the ALJ, as well as his

personal knowledge of plaintiff. Doc. 16, p. 21. The magistrate

judge then stated, “The administrative law judge, however,

neglected to consider any of these factors when evaluating Dr.

Williams’ opinion.” Doc. 16, p. 21. The magistrate judge

recommended that the case should be remanded for the ALJ to

determine if there are good reasons to find that Dr. Williams’

opinion is not controlling, and, if it is not, for the ALJ to

evaluate all the medical source evidence and determine what weight

to assign to each source, including the treating sources. Doc. 16,

p. 21.

Defendant argues that the ALJ was justified in not giving Dr.

Williams’ opinion controlling weight because his opinion was not

supported by clinical observations or objective evidence. Doc. 17,

p. 5. Defendant notes that in an earlier section of the decision,

the ALJ referred to various information from Dr. Williams’

treatment notes. Defendant then argues that these treatment

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records did not support Dr. Williams’ opinion, and that Dr.

Williams failed to adequately explain his conclusions regarding

plaintiff’s work restrictions. Doc. 17, p. 4.

Defendant’s analysis of the record evidence in her objections

cannot satisfy the ALJ’s obligation to conduct his own analysis of

whether controlling weight should be accorded Dr. Williams’

opinion, and to provide “good reasons” for why the opinion failed

to meet the two prongs of the treating physician controlling weight

test. See Gayheart, 710 F.3d at 376-77 (noting that the failure to

provide “good reasons” for not giving the treating physician’s

opinions controlling weight “hinders a meaningful review of whether

the ALJ properly applied the treating-physician rule that is at the

heart of this regulation”). The “adjudicator” must decide whether

the treating source’s medical opinion is “well-supported by

medically acceptable clinical and laboratory diagnostic

techniques.” 20 C.F.R. §404.1527(c)(2); Soc. Sec. Rul. No. 96-2p,

1996 WL 374188 at *2. Likewise whether a medical opinion “is not

inconsistent with the other substantial evidence in [the] case

record” is “a judgment that adjudicators must make in each case.” 

20 C.F.R. §404.1527(c)(2); Soc. Sec. Rul. No. 96-2p, 1996 WL 374188

at *3.

Here, the ALJ simply stated that the opinion of Dr. Williams

“is not supported by the medical evidence of record and is so

extreme that it is not worthy of belief.” The ALJ did not identify

the “medical evidence of record” on which he was relying. His

statement says nothing about whether or not Dr. Williams’ opinion

was supported by medically acceptable clinical and laboratory

diagnostic techniques. It also fails to describe any “substantial

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evidence” in the record which the ALJ found to be inconsistent with

Dr. Williams’ opinion. The cursory statements of the ALJ are

insufficient to permit a meaningful review of whether the ALJ

properly applied the controlling weight test. The court agrees

with the finding of the magistrate judge that the ALJ in this case

failed to adequately explain his findings under the “controlling

weight” test.

The magistrate judge further noted that the ALJ erred because,

after concluding that Dr. Williams’ opinion was not entitled to

controlling weight, he failed to evaluate all of the medical source

evidence or to determine what weight to assign to each source by

applying the factors in §404.1527(c). Defendant argues that the

ALJ was not required to address each of the §404.1527(c)(2) factors

verbatim, and that the ALJ provided “good reasons” for discounting

Dr. Williams’ opinion. However, any “good reasons” for discounting

the weight given to a treating-source opinion must be “supported by

the evidence in the case record, and must be sufficiently specific

to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the

reasons for that weight.” Rogers, 486 F.3d at 242.

The ALJ’s discussion of plaintiff’s treatment relationship

with Dr. Williams was cursory at best. The ALJ referred briefly to

the fact that Dr. Williams was plaintiff’s primary care physician,

and noted the September 30, 2009, medical source statement

completed by Dr. Williams and the fact that Dr. Williams

periodically prescribed Percocet for plaintiff. R. 13, 17-18. 

However, the ALJ engaged in no analysis of how this information and

other relevant factors, such as the length of the treatment

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relationship, the frequency of examination, or Dr. Williams’ area

of specialization, influenced his determination that Dr. Williams’

opinion was entitled to little weight. The ALJ did not describe

how Dr. Williams’ opinion was inconsistent with the record as a

whole and was not supported by relevant evidence. He did not

explain why he felt that Dr. Williams’ opinion was “extreme” or why

he concluded that Dr. Williams’ opinion in particular was based

solely on sympathy for the plaintiff as opposed to his clinical

observations over a long course of treatment.

The ALJ also failed to apply the §404.1527(c) factors to the

other medical opinions and did not explain the weight being

assigned to each of these opinions. He summarily stated that the

opinions of the state agency sources “are consistent with and are

well supported by the objective medical evidence” but did not point

to any specific evidence upon which he relied in arriving at this

conclusion.

The court agrees with the opinion of the magistrate judge that

the ALJ’s decision is inadequate to permit a meaningful review of

how the ALJ assigned weight to all of the medical source evidence

in the record.

III. Conclusion

For the reasons stated above, the court overrules the

Commissioner’s objections (Doc. 17), adopts the magistrate judge’s

report and recommendation (Doc. 16), reverses the Commissioner’s

non-disability finding, and remands this case to the Commissioner

under Sentence Four of § 405(g). On remand, the administrative law

judge shall determine if there are good reasons to find that Dr.

Williams’ opinion is not controlling, and if it is not, then the

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administrative law judge shall evaluate all the medical source

evidence and determine what weight to assign to each source,

including the treating sources.

It is so ordered.

Date: August 9, 2013 s/James L. Graham 

 James L. Graham

 United States District Judge

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