evidence of pain.” See Isaacs, 2013 WL 4067812, at *15. The ALJ also noted positive

imaging results. (Tr. 134, citing Tr. 1071). However, the ALJ did not discuss the significance

of these objective findings when evaluating Dr. Lee’s opinion, and the ALJ erroneously
disregarded at least some of the objective signs documented by Dr. Lee. (Tr. 133). Further, in
evaluating Dr. Lee’s opinion, the ALJ did not acknowledge the objective findings consistent with
neck and back pain that Dr. Lee repeatedly made on physical examination over the course of four
years. The ALJ erred by failing to identify the discrepancies between Dr. Lee’s findings and

his opinion and to explain why the objective medical findings Dr. Lee made did not support his
functional assessment.

The ALJ also erred by failing to identify substantial medical evidence in the record that
the ALJ believed was inconsistent with Dr. Lee’s opinions. See 20 C.F.R. § 404.1527(c)(4).
The only other medical opinions of record were issued by the non-examining state agency
physician, Drs. Green and Bolz. The ALJ gave portions of their opinion “some weight” on the
sole ground their assessment was “most consistent with the medical evidence of record” (Tr.
135), but the ALJ did not indicate what medical evidence supported the reviewing physicians’
opinion as opposed to the opinion of Dr. Lee and it is impossible to discern the basis for the
ALJ's finding from his decision.

Nor did the ALJ consider any of the other regulatory factors he was required to take into
account when weighing Dr. Lee’s opinion, which include the nature and extent of the treatment
relationship with plaintiff, the frequency of examination, and Dr. Lee’s area of specialization.
See 20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the medical opinion of a

specialist about medical issues related to his or her area of specialty than to the medical opinion
20


387-89, 384-86, 381-83, 378-80, 375-77, 372-74, 369-71, 366-68, 363-65, 360-62, 357-59, 354-
56, 342-44, 344-46, 347-48, 349-51, 1094-95, 1092-93, 1090-91, 1088-89, 1086-87, 1084-85,
1082-83, 1080-81, 1078-79, 1076-77, 1074-75, 1072-73, 1070-71, 1256-58, 1250-52, 1259-61,
1247-49, 1253-55, 1242-43). In addition, Dr. Lee made abnormal findings on examination of
the upper extremities, including crepitation with movement of the left scapula, Phalen sign?
bilaterally and on the left, decreased pinprick sensation in the left upper posterior arm and 4th
and Sth fingers, tender AC (acromioclavicular) joint, and restricted range of motion of the
extremities, over the course of four years between November 2011 and September 2015. (Tr.
410-12, 406-08, 402-04, 399-401, 393-95, 396-98, 390-92, 387-89, 384-86, 381-83, 378-80, 375-
77, 372-74, 369-71, 366-68, 363-65, 360-62, 357-59, 354-56, 342-44, 344-46, 347-49, 349-51,
1094-95, 1092-93, 1090-91, 1088-89, 1086-87, 1084-85, 1082-83, 1080-81, 1078-79, 1076-77,
1074-75, 1072-73, 1070-1071).

The record thus shows that Dr. Lee made repeated and consistent objective findings that
documented plaintiff's neck and back pain and upper extremity symptoms. However, the ALJ
did not discuss Dr. Lee’s objective findings when evaluating Dr. Lee’s opinion and explain why
he concluded, despite Dr. Lee’s clinical and diagnostic findings, that Dr. Lee’s opinion was
“highly dependent upon [plaintiff's] subjective reports of symptoms and limitations.” (Tr.

136). The ALJ’s discussion of the objective medical findings elsewhere in his decision does

not substantially support his conclusion that the treating physician relied on plaintiffs subjective

2“Phalen sign” refers to “[p]aresthesias over the median nerve evoked by maximum passive flexion of the wrist for
1 minute,” which may indicate carpal tunnel syndrome. https://medical-
dictionary.thefreedictionary.com/Phalen+sign .

14


v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’ of Soc.
Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand 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 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a
preponderance. .. .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner’s findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “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.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at
746). See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

D. Specific Errors

On appeal, plaintiff argues that: (1) the ALJ failed to properly weigh the medical opinion
evidence by assigning “very little weight” to the opinions provided by her treating physician,

pain management specialist Dr. Hungchih Lee, M.D., and by assigning greater weight to the


of a source who is not a specialist.”). The ALJ did not take into account that Dr. Lee treated
plaintiff consistently on a monthly basis, over a period of four years, for purposes of pain
management treatment, and neither did the ALJ consider the types of treatment that Dr. Lee
administered. The ALJ did not factor into his decision Dr. Lee’s area of specialization in pain
management, which is particularly relevant here given plaintiff's allegations of debilitating pain.
Thus, the ALJ’s finding that Dr. Lee’s opinion was entitled to “very little weight” for reasons the
ALJ did not adequately explain, based on the conflicting medical opinion of the non-examining
medical sources, is not substantially supported. See Shields, 2018 WL 2193136, at *7 (citing
Friend, 375 F. App’x at 551-52) (holding that the ALJ committed reversible error by discounting
a treating source’s assessment of the claimant’s functional abilities on the grounds that (1) a
reviewing source’s assessment of those limitations was “more consistent with the objective
clinical findings” and (2) “there [was] no basis for [the treating physician’s] conclusion” about
the claimant’s functional abilities).

Although the ALJ’s failure to provide good reasons can, under some circumstances,
constitute a “harmless de minimis procedural violation,” that is not the case “where the error
makes meaningful review impossible.” Shie/ds, 2018 WL 2193136, at *8 (citing Blakley, 581
F.3d at 409). Further, whether a procedural error is harmless does not depend on the likelihood
of success on remand. See Shields, 2018 WL 2193136, at *8 (citing Wilson, 378 F.3d at 546)
(quoting Mazaleski v. Treusdell, 562 F.2d 701, 719 n. 41 (D.C. Cir. 1977)). Because
meaningful review of the ALJ’s decision is not possible in this case, the ALJ’s failure to weigh
the treating pain management specialist’s opinion in accordance with the treating physician rule

was not harmless error.
21


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JENNIFER KAY INLOW, Case No. 1:17-cv-163

Plaintiff, Barrett, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF

SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,

474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

23


and (2) it “permits meaningful review of the ALJ’s application of the [treating-source] rule.”
Shields, 2018 WL 2193136, at *7 (citing Wilson, 378 F.3d at 544). The Sixth Circuit has made
clear that remand is appropriate “when the Commissioner has not provided ‘good reasons’ for
the weight given to a treating physician’s opinion” and when the ALJ has not “comprehensively
set forth the reasons for the weight assigned to a treating physician’s opinion.” /d. (quoting
Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009) (emphasis added by Hensley) (quoting
Wilson, 378 F.3d at 545).

The ALJ did not give “good reasons” for assigning Dr. Lee’s opinions “very little
weight.” (Tr. 136). The ALJ implied in his decision that he considered some of the factors
listed under § 404.1527(c) in weighing Dr. Lee’s opinion, namely (1) the supportability of the
opinion, and (2) the consistency of Dr. Lee’s opinions with other evidence in the record. (/d.).
The ALJ stated that Dr. Lee’s opinions and restrictions, including the restriction to rare or no
reaching (including overhead), were not supported by any objective or clinical findings, which
included Dr. Lee’s own treatment notes. (/d., citing Tr. 1070-1196, 1565-87). The ALJ noted
that instead, Dr. Lee’s findings appeared to be “highly dependent” on plaintiff's subjective
complaints, which were not “wholly reliable,” and that his opinion was not fully consistent with
plaintiff's activities of daily living as discussed more fully in connection with the ALJ’s
assessment of plaintiff's severe impairments. (Tr. 136, citing Finding #3, Tr. 127-131).
However, the ALJ failed to identify specific discrepancies between Dr. Lee’s functional
assessment and plaintiff's daily activities and the ALJ did not cite particular portions of the
record to support his findings. The ALJ’s barebones analysis of this aspect of the record does

not qualify as an “assessment of the [treating physician’s] opinion” under 20 C.F.R. §

48


supported by and consistent with the “totality of the medical evidence” showing plaintiff to be
less limited than Dr. Lee opined, and with the “credible portion of [plaintiff's] activities of daily
living” as set forth by the ALJ in his severe impairment finding. (Tr. 136). The ALJ found that
“Dr. Lee did not have access to all of the medical evidence that is currently in the record that
contradicts his conclusions.” (/d.). Second, the ALJ found that Dr. Lee’s opinion imposed far
more restrictions than were supported by his own treatment notes and, specifically, there were no
objective or clinical findings to support Dr. Lee’s restriction to “rare or never reaching (including
overhead) with [plaintiffs] arms.” (/d., citing Tr. 1070-1196, 1565-1587). The ALJ concluded
that Dr. Lee’s opinion was “highly dependent upon [plaintiff's] subjective reports of symptoms
and limitations,” which the ALJ found were not “wholly reliable” for reasons the ALJ discussed
when assessing plaintiff's credibility. (Tr. 136).

The ALJ instead largely adopted the assessments of the state agency reviewing
physicians, Dr. Leslie Green, M.D., and Dr. William Bolz, M.D. (Tr. 135). Dr. Green
reviewed the record on November 19, 2013 and Dr. Bolz reviewed the record on reconsideration
on January 31, 2014. (Tr. 189-90, 202-03). The reviewing physicians determined that plaintiff
was limited to light work with unlimited balancing; occasional climbing of ramps/stairs,
stooping, kneeling, crouching and crawling; never climbing ladders/ropes/scaffolds; unlimited
reaching and fingering/feeling; and occasional handling. The ALJ gave “some weight” to “the
majority of these assessments,” finding:

[T]hey are consistent with the evidentiary record as a whole. However, the

portion of these assessments finding the claimant limited to only occasional

handling is given very little weight, as such finding is not supported by the totality

of the record despite the claimant’s testimony of carpal tunnel related
symptomology and numbness in her hands.

10


the opinion. 20 C.F.R. § 404.1527(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at
544,

On the other hand, opinions from non-treating and non-examining sources are never
assessed for “controlling weight.” A non-treating source’s opinion is weighed based on the
medical specialty of the source, how well-supported by evidence the opinion is, how consistent
the opinion is with the record as a whole, and other factors which tend to support or contradict
the opinion. 20 C.F.R. § 404.1527(c)(3)-(6); Wilson, 378 F.3d at 544. Because a non-
examining source has no examining or treating relationship with the claimant, the weight to be
afforded the opinion of a non-examining source depends on the degree to which the source
provides supporting explanations for his opinions and the degree to which his opinion considers
all of the pertinent evidence in the record, including the opinions of treating and other examining
sources. 20 C.F.R. § 404.1527(c)(3). Under the Social Security regulations, the opinions of
state agency medical consultants may be entitled to significant weight where they are supported
by record evidence. Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 713 (6th Cir. 2013) (citing
20 C.F.R. § 404.1527(e)(2)(i)).

ti. The treating physician’s assessments

Plaintiff sustained an injury in September 2009 when she lifted a patient while working
as a nurse’s aide. (Tr. 532-33). Pain management specialist Dr. Lee started treating plaintiff on
November 16, 2010 (Tr. 451-54) and continued to treat plaintiff through at least September
2015. (Tr. 340-456, 1070-1188, 1241-64). Dr. Lee completed five assessments of plaintiff's
functional capacity. Dr. Lee prepared a Strength Assessment at the request of the local

Department of Job & Family Services on February 14, 2013. (Tr. 549-50). Dr. Lee reported
7


opinions of the non-examining state agency physicians; and (2) the ALJ failed to properly
evaluate plaintiff's credibility. (Docs. 7, 11).

1. The ALJ’s weighing of the treating physician’s opinion

i. The treating physician rule

It is well-established that the findings and opinions of treating physicians are entitled to
substantial weight. “In general, the opinions of treating physicians are accorded greater weight
than those of physicians who examine claimants only once.” Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 530-31 (6th Cir. 1997). See also Harris v. Heckler, 756 F.2d 431, 435 (6th Cir.
1985) (“The medical opinions and diagnoses of treating physicians are generally accorded
substantial deference, and if the opinions are uncontradicted, complete deference.”).

“Treating-source opinions must be given ‘controlling weight’ if two conditions are met:
(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.”” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). If the
ALJ declines to give a treating source’s opinion controlling weight, the ALJ must balance the
factors set forth in 20 C.F.R. § 404.1527(c)(2)-(6) in determining what weight to give the
opinion. See Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. These factors include the
length, nature and extent of the treatment relationship and the frequency of examination. 20
C.F.R. § 404.1527(c)(2)(i)(ii); Wilson, 378 F.3d at 544. In addition, the ALJ must consider the
medical specialty of the source, how well-supported by evidence the opinion is, how consistent

the opinion is with the record as a whole, and other factors which tend to support or contradict
6


404.1527(c) and SSR 96-2p. Shields, 2018 WL 2193136, at *7-10 (citing Friend, 375 F. App’x
at 551-52).

Defendant does not deny that the ALJ failed to discuss Dr. Lee’s objective findings when
evaluating his opinion, but defendant argues the record considered as a whole substantially
supports the ALJ’s finding that Dr. Lee’s opinion was entitled to “very little weight.” (Doc. 10
at 7, citing Tr. 133-34). Defendant notes that in reviewing the medical evidence, the ALJ stated
there were objective findings of “some tenderness in the cervical and lumbar spine, occasional
claudication, muscle spasm in the scapula, crepitus in the left shoulder, trigger points in the
scapula, and sensory loss in the left 4th and Sth fingers” (Tr. 1064-69),” and imaging results
showed a disc protrusion with ventral cord effacement at C6-7 and a disc protrusion at C5-6 (Tr.
1071). (Tr. 134). Defendant argues that notwithstanding this objective evidence, the ALJ
discounted Dr. Lee’s opinions and assessment of “extreme” restrictions because many of the
signs typically associated with chronic severe pain - such as muscle atrophy, spasm, rigidity, or
tremor - were lacking. (Doc. 10 at 8; see Tr. 134, citing Tr. 1070-1196, 1283-86, 1565-87).
Defendant concedes that the ALJ’s findings are not entirely consistent and factually accurate
because the medical record does document spasm as well as sensory loss, which the ALJ
indicated were lacking, but defendant argues that these “few misstatements” do not “overcome
the remainder of the ALJ’s consideration.” (Doc. 10 at 8).

The Court disagrees that the ALJ properly evaluated whether Dr. Lee’s opinion was
supported by his objective findings. As discussed above, the ALJ found that the medical
evidence documented plaintiffs neck and back pain and that examinations disclosed restricted

range of motion, spasm, and sensory loss (Tr. 133-34), which constitute “reliable objective
19


pounds; sit for 2 hours in an 8-hour day if able to get up to move around every 30-40 minutes for
as long as needed; stand/walk 1 to 2 hours in an 8-hour workday; walk one block at a reasonable
pace on uneven or rough surfaces; and carry out routine ambulatory activities, including
shopping and banking. (Tr. 1064-69). Dr. Lee found significant limitations in
reaching/handling and he assessed plaintiff as never/rarely able to use her arms for reaching
(including overhead) and he limited plaintiff to occasional grasping, turning and twisting objects
and occasional fine manipulation. Dr. Lee identified the supporting clinical findings as
tenderness in the cervical and lumbar spine, occasional pseudoclaudication!, muscle spasm in the
scapula, crepitus in the left shoulder, trigger points in the scapula, limited and painful lumbar and
cervical spine and shoulder range of motion, and sensory loss in the left 4th and Sth fingers.
(Tr. 1065-66). According to Dr. Lee, plaintiff would need to take unscheduled breaks 1 to 2
times an hour at unpredictable intervals during an 8-hour workday. (Tr. 1068). He opined that
plaintiff's pain would likely be aggravated if she were placed in a competitive work environment
and that her pain, fatigue, or other symptoms would be severe enough to interfere with her
attention and concentration frequently. (Tr. 1068). He reported that her restrictions were
expected to last at least 12 months. (/d.). Dr. Lee reaffirmed his November 2014 opinion in a
narrative statement dated September 2015. (Tr. 1284).

The ALJ gave Dr. Lee’s November 2014 assessment as affirmed in September 2015

“very little weight.” (Tr. 136). First, the ALJ found that Dr. Lee’s opinions were not fully

'“Pseudoclaudication” refers to “painful cramps that are not caused by peripheral artery disease but rather by spinal,
neurological, or orthopedic disorders, such as spinal stenosis, diabetic neuropathy, or arthritis.” https://medical-

dictionary.thefreedictionary.com/pseudoclaudication.
9


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JENNIFER KAY INLOW, Case No. 1:17-cv-163
Plaintiff, Barrett, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF REPORT AND
SOCIAL SECURITY, RECOMMENDATION
Defendant.

Plaintiff Jennifer Kay Inlow brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security (Commissioner) denying
plaintiff's application for disability insurance benefits (“DIB”). This matter is before the Court
on plaintiff's Statement of Errors (Doc. 7), the Commissioner’s response in opposition (Doc. 10),
and plaintiff's reply (Doc. 11).

I. Procedural Background

Plaintiff protectively filed her application for DIB in May 2013, alleging disability since
September 12, 2011, due to neck, back, hip, and left shoulder pain, anxiety, arthritis, asthma, and
migraines. The application was denied initially and upon reconsideration. Plaintiff requested
and was granted a de novo hearing before administrative law judge (“ALJ”) Jason C. Earnhart.
Plaintiff, who was represented by a non-attorney representative, and a vocational expert (“VE”)
appeared and testified at the ALJ hearing on September 30, 2015. On November 5, 2015, the
ALJ issued a decision denying plaintiff's DIB application. Plaintiff's request for review by the
Appeals Council was denied, making the decision of the ALJ the final administrative decision of

the Commissioner.


Defendant argues that substantial evidence supports the ALJ’s evaluation of the medical
opinion evidence. (Doc. 10). Defendant alleges that in arguing otherwise, plaintiff essentially
disagrees with the ALJ’s weighing of the opinion evidence, which is not a basis for setting aside
the ALJ's factual findings. (/d. at 4). Defendant argues that the ALJ is responsible for
evaluating the medical evidence to assess the claimant’s RFC and that the ALJ’s “good reasons”
for the weight given to a medical opinion may be implicit in the ALJ’s decision. (Jd. at 5).
Defendant alleges that the ALJ properly evaluated Dr. Lee’s assessment and found it was
inconsistent with the objective medical evidence and plaintiff's activities of daily living and, “as
such,” the opinion “appeared” to improperly depend on plaintiff's subjective reports. (Jd. at 6-7,
citing Tr. 136).

The ALJ’s decision to give Dr. Lee*s November 2014/September 2015 assessment less
than controlling weight is not substantially supported by the record. The ALJ reviewed the
functional restrictions Dr. Lee assessed and acknowledged that treating source opinions are to be
given controlling weight if (1) the opinions are well-supported by medically acceptable clinical
and laboratory diagnostic techniques, and (2) are not inconsistent with the other substantial
evidence. (Tr. 136). The ALJ found that Dr. Lee did not base his opinion on objective clinical
and laboratory findings but instead relied on largely on plaintiff's subjective reports. (Tr. 136).
However, the ALJ did not identify any specific evidence that led him to this conclusion. The
ALJ acknowledged in his review of the medical evidence of record that Dr. Lee’s medical
records documented plaintiff's “neck and back pain.” (Tr. 133). The ALJ specifically noted
that physical examinations disclosed restricted range of motion, spasm, and sensory loss (Tr.

133-34), clinical findings which are “reliable objective evidence of pain,” and imaging results
12


(Tr. 135-36).

Plaintiff argues that the ALJ erred by giving Dr. Lee’s opinions less than controlling
weight on grounds that are not substantially supported by the record. (Doc. 7 at 17-18).
Plaintiff contends the record contradicts the ALJ’s conclusory finding that Dr. Lee based his
opinion on plaintiffs subjective complaints rather than on objective medical findings; the ALI
improperly substituted his “lay conclusions,” unsupported by any medical authority, for Dr.
Lee’s opinion on the physical limitations resulting from Dr. Lee’s objective findings; the ALJ
gave greater weight to the opinions of the non-examining state agency physicians, who reviewed
a “markedly undeveloped” record; the ALJ erred by finding that Dr. Lee’s opinion was
inconsistent with plaintiff's part-time work and her activities of daily living, which she
performed on a sporadic basis for short time periods; and the ALJ did not identify medical
evidence to support his finding that Dr. Lee did not have access to all of the medical evidence
that contradicted Dr. Lee’s medical conclusions. (/d.). Plaintiff argues that even assuming the
ALJ was not bound to give Dr. Lee’s opinions controlling weight, the treating physician’s
opinion was nonetheless entitled to deference under 20 C.F.R. § 404.1527(c)(2)-(6) because (1)
Dr. Lee treated plaintiff regularly throughout the relevant time period; (2) the nature of the
treatment was focused on plaintiff's chronic pain and related limitations, which are the cause of
plaintiff's alleged disability, and included multiple types of treatment ranging from physical
therapy and injections to narcotic pain medications; (3) Dr. Lee provided objective support for
his opinion (Tr. 1064-66); (4) the treatment record supports his opinion; and (5) Dr. Lee is a

specialist in pain management who gave an opinion in his area of specialty.

11


that plaintiff could sit, stand, type, and fill out forms for 1 to 2 hours per day; she could fold,
alphabetize, and sort papers, operate a copier, fax, shredder or printer, stuff envelopes, and
answer phones for less than 2 hours per day; she could lift 25 or fewer pounds for less than 2
hours per day; and her limitations were expected to last 12 months. Dr. Lee prepared a second
Strength Assessment on November 14, 2013. (Tr. 547-48). He reported that plaintiff could sit,
stand, and fill out forms for 2 to 4 hours per day; she could type for 1 hour per day; she could
fold, alphabetize, and file papers, operate a copier, fax, shredder, or printer, stuff envelopes, and
answer phones for 2 to 4 hours per day; and she could lift 25 or fewer pounds for | hour per day.
(Tr. 547-48). Dr Lee opined that her limits would last 3 to 6 months.

On October 28, 2014, Dr. Lee completed a Medical Source Statement. (Tr. 635-37).
He listed plaintiff's diagnoses as cervical disc displacement, thoracic facet syndrome, carpal
tunnel syndrome, and lumbago. Dr. Lee reported that plaintiff could occasionally lift/carry 1 to
5 pounds, rarely lift/carry 6 tol0 pounds, and never carry more than 10 pounds; she could never
use her right and left hands/arms for reaching and was restricted to occasional handling/fingering
with either hand; in an 8-hour workday she could stand 1 to 2 hours total and 30-40 minutes
uninterrupted, walk 1 to 2 hours total and 30-60 minutes uninterrupted, and sit 2 to 3 hours total
and 30-40 minutes uninterrupted; and she could occasionally bend, squat, crawl, and climb steps
or ladders. (/d.). He opined that plaintiff's restrictions had presented since at least September
12, 2011. Dr. Lee opined that plaintiff was likely to be absent from work 5 or more days per
month. (Tr. 637).

On November 21, 2014, Dr. Lee completed a Spinal Impairment Questionnaire in which

he opined that plaintiff could occasionally lift up to 5 pounds; occasionally carry up to 10
8


Plaintiff's first assignment of error should be sustained.

2. The ALJ’s credibility finding

Plaintiff alleges that the ALJ’s credibility finding is not supported by substantial
evidence. Resolution of this issue may be impacted by the ALJ’s reevaluation of the medical
opinion evidence on remand. Accordingly, the Court need not address the ALJ’s credibility
finding at this time.

Ill. This matter should be reversed and remanded for further proceedings.

In determining whether this matter should be reversed outright for an award of benefits or
remanded for further proceedings, the Court notes that all essential factual issues have not been
resolved in this matter, nor does the current record adequately establish plaintiffs entitlement to
benefits as of her alleged onset date. Faucher v. Secretary of H.H.S., 17 F.3d 171, 176 (6th Cir.
1994). This matter should be remanded for further proceedings, including consideration and
reevaluation of the opinions of the treating physician and other medical sources of record, and
reassessment of plaintiff's credibility and additional vocational testimony as warranted,
consistent with this decision.

IT IS THEREFORE RECOMMENDED THAT:

The decision of the Commissioner be REVERSED and REMANDED for further

proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).

Date: Whe Ad Bhoren aeons

Karen L. Litkovitz
United States Magistrate Judge

22


6. Through the date last insured, the [plaintiff] was unable to perform any past
relevant work (20 CFR 404.1565).

7. The [plaintiff] was born [in] . . . 1975 and was 39 years old, which is defined as
a younger individual age 18-49, on the date last insured (20 CFR 404.1563).

8. The [plaintiff] has a limited education and is able to communicate in English
(20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Through the dated last insured, considering the [plaintiff]’s age, education,
work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the [plaintiff] could have
performed (20 CFR 404.1569 and 404.1569(a)).?

11. The [plaintiff] was not under a disability, as defined in the Social Security
Act, at any time from September 12, 2011, the alleged onset date, through June
30, 2015, the date last insured (20 CFR 404.1520(g)).

(Tr. 127-39).
C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley

*Plaintiff’s past relevant work was as a nurse’s aide, a medium, semi-skilled position, which she performed at a
very heavy exertional level. (Tr. 137, 170).

*The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of
representative sedentary unskilled jobs of order clerk, with 3,000 jobs in the state and 90,000 jobs in the nation;
charge account clerk, with 1,200 jobs in the state and 70,000 jobs in the nation; and inspector, with 3,200 jobs in the
state and 50,000 jobs in the nation. The ALJ also relied on the VE’s testimony to find that plaintiff would be able to
perform the requirements of representative light unskilled jobs of photo copy machine editor, with 1,500 jobs in the
state and 44,000 jobs in the nation; marker, with 7,200 jobs in the state and 115,000 jobs in the nation; and mail
sorter, with 2,300 jobs in the state and 55,000 jobs in the nation. (Tr. 138-39, 170-71).

4


complaints rather than his objective findings to assess plaintiff's functional limitations. The
ALJ did not properly evaluate Dr. Lee’s opinion under the first prong of the controlling weight
standard.

The ALJ also failed to properly evaluate Dr. Lee’s opinion under the second prong of the
controlling weight standard, i.e., “whether the opinion ‘is not inconsistent with the other
substantial evidence in [the] case record.”” Gayheart, 710 F.3d at 376 (citing 20 C.F.R. §
1527(c)(2)). The ALJ concluded that the “totality of the medical evidence clearly supports that
the claimant is not as limited as assessed by this doctor.” (Tr. 136). In support of this
conclusion, the ALJ noted that Dr. Lee’s opinion was inconsistent with plaintiff's activities of
daily living as set forth in the severe impairment finding. Specificlly, plaintiff was
“independent in self-care, [she] watched the news, did dishes, went to church, picked up, did
very light cleaning . . . used a laptop to access her Facebook account once or twice a day [and]
worked 10 hours a week for the county filing, stapling and shredding papers in order to maintain
her eligibility for cash assistance benefits. .. .” (See Tr. 128). However, the ALJ did not
explain why he considered this relatively limited range of daily activities to be inconsistent with
the restrictions Dr. Lee assessed. Plaintiff's activities of daily living are not indicative of an
ability to perform a restricted range of light or sedentary work on a regular and continuing basis
despite her severe impairments. See SSR 96-8P, 1996 WL 374184, at *1 (RFC is the
assessment of an individual’s ability to perform “sustained work-related physical . . . activities in
a work setting on a regular and continuing basis . . . [i.e.] 8 hours a day, for 5 days a week, or an

equivalent work schedule.”).

15


dismiss a treating physician’s opinion as ‘incompatible’ with other evidence of record; there
must be some effort to identify the specific discrepancies and to explain why it is the treating
physician’s conclusion that gets the short end of the stick.”).

Thus, the ALJ did not comply with his obligations under 20 C.F.R. § 404.1527(c) in
applying the controlling weight standard. The ALJ’s conclusion that Dr. Lee’s opinion of
debilitating limitations was not supported by his objective findings and was inconsistent with the
other evidence of record is not substantially supported.

If the ALJ declines to give a treating source’s opinion controlling weight, the ALJ must
weigh the factors specified in 20 C.F.R. § 404.1527(c) to decide what weight to give the opinion;
specifically, 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. See Shields v. Commr.
of Soc. Sec., No. 17-6091, -- F. App’x --, 2018 WL 2193136, at *7 (6th Cir. May 14, 2018)
(citing Wilson, 378 F.3d at 544) (emphasis added)); see also Blakley, 581 F.3d at 408 (“Treating
source medical opinions [that are not accorded controlling weight] are still entitled to deference
and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527[(c)]”). The
ALJ's decision “must contain specific reasons for the weight given to [a] treating source’s
medical opinion, 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.” SSR 96-2p, 1996 WL 374188, at *5.
This requirement serves two purposes: (1) “it helps a claimant to understand the disposition of

her case, especially ‘where a claimant knows that h[er] physician has deemed h[er] disabled,’”
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steps of the sequential evaluation process. /d.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999).

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:

1. The [plaintiff] last met the insured status requirements of the Social Security
Act on June 30, 2015.

2. The [plaintiff] did not engage in substantial gainful activity during the period
from her alleged onset date of September 12, 2011 through her date last insured of
June 30, 2015 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the [plaintiff] had the following severe
impairments: degenerative disc disease of the cervical and lumbar spine;
myofascial pain syndrome; arthritis; migraine headaches; carpal tunnel syndrome;
and chronic obstructive pulmonary disease/asthma (20 CFR 404.1520(c)).

4. Through the date last insured, the [plaintiff] did not have an impairment or
combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the [plaintiff] had the residual functional capacity
[(-RFC”)] to perform light work as defined in 20 CFR 404.1567(b) except
occasional extreme temperatures, humidity and atmospheric conditions, and
pulmonary irritants; occasional foot controls; occasional ramps and stairs,
stooping, kneeling, crouching, and crawling; and never to climb ladders, ropes, or
scaffolds. Additionally, the [plaintiff] is limited to frequent reaching,
pushing/pulling; frequent handling, fingering, and feeling.

3


II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or

mental impairment — i.e., an impairment that significantly limits his or her

physical or mental ability to do basic work activities — the claimant is not

disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the

listings in Appendix 1 to Subpart P of the regulations and meets the duration

requirement, the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§

404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four


that showed a disc protrusion with ventral cord effacement at C6-7 and a disc protrusion at C5-6.
(Tr. 134, citing Tr. 1071). Yet, the ALJ did not discuss the significance of these findings when
evaluating Dr. Lee’s opinion under the first prong of the controlling weight standard. (Tr. 136).
See Isaacs v. Commr. of Soc. Sec., No. 1:12-cv-591, 2013 WL 4067812, at *15 (S.D. Ohio Aug.
12, 2013) (Report and Recommendation) (Litkovitz, M.J.), adopted, 2013 WL 4833670 (S.D.
Ohio Sept. 10, 2013) (citing Jones v. Secretary, Health and Human Services, 945 F.2d 1365,
1369-1370 (6th Cir. 1991) (“reliable objective evidence of pain includes medical evidence of
muscle atrophy, reduced joint motion, muscle spasm and sensory and motor disruption”).
Further, defendant concedes that the ALJ made conflicting, erroneous findings as to what Dr.
Lee’s records showed by stating that the evidence failed to document evidence of spasm and
sensory loss. (Doc. 10 at 7-8).

Further, in evaluating Dr. Lee’s opinion, the ALJ did not acknowledge the objective
findings consistent with neck and back pain that Dr. Lee repeatedly made on physical
examination over more than four years of treatment between September 2011 and September
2015. These findings included restricted range of motion and/or stiffness in the cervical spine,
(2) restricted range of motion and/or stiffness in the lumbar spine, and (3) restricted range of
motion and/or stiffness in the thoracic spine. (See Tr. 418-20, 363-65, 360-62, 357-59, 354-56,
342-44, 344-46, 347-49, 349-51,1094-95, 1092-93, 1088-89, 1086-87, 1084-85, 1082-83, 1080-
81, 1078-79, 1076-77, 1074-75, 1072-73, 1070-1071, 1256-58, 1250-52, 1259-61, 1247-49,
1253-55, 1242-43). Dr. Lee also made findings of tenderness in the bilateral occipital muscles
and cervical, thoracic, and lumbar spine, and increased neck pain on testing during this same

time frame. (Tr. 418-20, 414-16, 410-12, 406-08, 402-04, 399-401, 393-95, 396-98, 390-92,
13


The ALJ also rejected Dr. Lee’s opinion because he found that Dr. Lee was unable to
consider other medical evidence that contradicted his opinion. (Tr. 136). The ALJ did not
identify the medical evidence that he relied on to reach this conclusion. Defendant concedes
the ALJ did not clearly identify the evidence in question, but defendant theorizes that the ALJ
“seemingly” was referring to the medical records in Exhibit 18F based on the following excerpt

from the ALJ’s decision:

Dr. Lee did not have access to all of the medical evidence that is currently in the

record that contradicts his conclusions. There is no objective or clinical findings

in the record to support his limitation to rare or never reaching (including overhead)

with her arms. Dr. Lee’s opinion is far more restrictive than what is supported by

the objective medical evidence, including Dr. Lee’s own treatment notes (Exhibits

12F; 18F).
(Doc. 10 at 11, citing Tr. 135). Defendant posits that by referencing both Exhibit 12F, which
consists of Dr. Lee’s records, and Exhibit 18F, which does not include Dr. Lee’s records, the
ALJ must have meant that the records included in Exhibit 18F contradicted Dr. Lee’s
assessment. Defendant argues that read as a whole, the ALJ “set forth the evidence he
presumably relied on” to find Dr. Lee did not have access to all the medical evidence that
contradicted his conclusions. (/d.). The Court disagrees. As defendant’s attempt to make
sense of this portion of the ALJ’s decision demonstrates, one can only speculate as to what the
ALJ meant when he wrote that Dr. Lee did not have access to all of the evidence that
contradicted to his opinion. A meaningful review of this aspect of the ALJ’s decision is
therefore impossible. The ALJ did not make a proper finding, supported by substantial

evidence, that Dr. Lee’s opinion was not consistent with the totality of the evidence. See

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 552 (6th Cir. 2010) (“[I]t is not enough to

16