Cox v. SSA, No. 6:2011cv00319 - Document 12 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION & ORDER: 1) Plaintiff's motion, [DE 10 ], is GRANTED;2) Defendant's motion, [DE 11 ], is DENIED; 3) the decision of the Commissioner is REVERSED, and this matter is REMANDED to the Commissioner for further proceedings consistent with this Opinion and Order. Signed by Judge Joseph M. Hood on 5/4/2012.(RBB)cc: COR

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON PATRICIA COX, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. ** ** ** Action No. 6:11-cv-319-JMH MEMORANDUM OPINION AND ORDER ** ** Patricia Cox appeals the Commissioner s decision denying her application for insurance benefits. supplemental security See 42 U.S.C. § 405(g). and disability This matter is before the Court upon the parties cross-motions for summary judgment [DE 10, 11].1 The Court, having reviewed the record and being otherwise sufficiently advised, will grant Plaintiff Cox s motion, deny the Commissioner's motion, and remand this matter for reconsideration consistent with this opinion. Administrative Law Judge (ALJ) Ronald M. Kayser conducted a hearing on Plaintiff Cox s application for benefits on August 23, 2010. Kayser 1 [Administrative Record, hereinafter AR 27]. found that Cox had severe impairments ALJ including These are not traditional Rule 56 motions for summary judgment. Rather, it is a procedural device by which the parties bring the administrative record before the Court. See LR 83.11(c). degenerative disc/joint disease and scoliosis of the lumbar spine, chronic low back pain, degenerative disc/joint disease of the cervical spine, and right lower extremity radiculopathy. 14. AR The ALJ also found that while Cox could not perform her past relevant work, her impairments were not equivalent to any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. ALJ Kayser found that Cox was capable of performing a limited range of light work. In finding that Cox was not disabled, the ALJ relied upon the testimony of a vocational expert who capacity opined, (RFC) based on the determination, ALJ s that Cox significant number of jobs in the economy. residual could functional perform a The ALJ s opinion became the final decision of the Commissioner when the Appeals Council declined Cox s request for review. We will affirm the Commissioner s decision if the decision is supported by substantial evidence in the record, 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001), and the ALJ employed the proper legal standards in reaching his conclusion. See Landshaw v. Sec y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). When deciding whether there is substantial evidence to support the Commissioner s decision, we do not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. 506, 509 (6th Cir. 2007). 2 Bass v. McMahon, 499 F.3d Cox argues that the ALJ erred by failing to give controlling weight to the opinion of her treating physician, Dr. David Bullock. When making eligibility determinations, ALJs are required to give a treating source s opinion controlling weight if the clinical opinion and inconsistent is well-supported laboratory with the diagnostic other claimant s] case record." by medically techniques substantial acceptable and evidence 20 C.F.R. § 404.1527(c)(2). is in not [the If the ALJ declines to assign a treating source s opinion controlling weight, he must balance the following factors to determine what weight to give it: the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, consistency of the opinion supportability with the of record specialization of the treating source. the as a opinion, whole, and Wilson v. Comm r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)(citing 20 C.F.R. § 404.1527(c)). given Notably, when treating source opinions are not controlling weight, ALJs are required to good reasons for the weight they are given. describe the 20 C.F.R. § 404.1527(c)(2). In ruling upon Cox s application, ALJ Kayser considered, but did not adopt, the February 2010 opinion provided by Cox s treating physician, Dr. Bullock. See AR 17. While the ALJ is clear that he did not accord Dr. Bullock s opinion controlling 3 weight, he does not indicate how much weight, if any, he did give to the opinion. In providing some rationale for his failure to give the opinion controlling weight, ALJ Kayser noted that Cox was present while Dr. Bullock drafted the opinion letter and that Dr. Bullock had relied mainly upon Cox s own statements regarding her functional abilities, despite Cox s hearing testimony that Dr. Bullock had her perform tests in his office. Further, the ALJ stated, Dr. Bullock did not specify which of Cox s medical records his opinion was based on. He concluded restrictions that and interpretation of Dr. that MRI Bullock he was took studies. being some He generous liberty also in with indicated that his the Dr. Bullock s opinion may have been based, at least in part, on sympathy for his patient. ALJ Kayser also found that Dr. Bullock s opinion contrast[ed] sharply with the other evidence of record, which render[ed] it less persuastive. AR 17. He went on to state that [t]he (somewhat non-specific) assessment of the consultative examining physician has been given probative weight to the extent it is commensurate with the residual functional capacity defined in Finding 5 [of the ALJ opinion]. AR 18. ALJ Kayser s analysis of Dr. Bullock s opinion evidence is deficient in a number of respects. The ALJ opinion does not reflect that, in rejecting Dr. Bullock s opinion, ALJ Kayser 4 engaged in the required balancing of factors to determine what weight the opinion should have been given. 404.1527(c). While he found that Dr. See 20 C.F.R. § Bullock s opinion contrasts sharply with the other evidence of record, he did not point any specific portions of the record, other than to say that Dr. Bullock took some liberty with the interpretation of MRI studies. Good reasons are those that are 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. Blakley v. Comm r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009). Further, ALJ Kayser did not assign a specific weight to Dr. Bullock s opinion. Failure to medical assign a specific weight opinion is, in itself, error. 938 (6th Cir. 2011). to a treating source s See Cole v. Astrue, 661 F.3d 931, ALJs are not free to disregard treating physicians opinions entirely, simply because the opinion is not entitled to controlling weight. Blakley, 581 F.3d at 408. In March 2009, Dr. Robert Hoskins performed a consultative examination of Plaintiff Cox. I expect moderate Dr. Hoskins opined as follows: limitations for uneven ground and climbing stairs. for bending, dysfunctions lifting were and walking, that 5 with I expect strong limitation carrying. identified especially No clearly musculoskeletal exclude some ambulation, standing, traveling. handling, identified lifting. manipulations or No definite impairment was noted in regard to fine manipulations of the fingers. were gross that clearly AR 222-23. No musculoskeletal limitations exclude all light carrying and Dr. Hoskins added, The assessment of the patient s ability to do work related activities is not exact. Collection of and correlation with other medical records and opinions is recommended. AR 223. ALJ Kayser gave probative weight to what he conceded was Dr. Hoskins s somewhat nonspecific assessment. He provided no rationale for the amount of weight given to this opinion. Further, he did not specificy the amount of weight given to the opinion other than to say that it was given probative weight to the extent it correlated with the residual functional capacity determined by the ALJ. The fact that a consultative examining physician reaches a different conclusion than that of a treating physician is an insufficient reason for declining to give the treating physician s opinion controlling weight. Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009). As the Sixth Circuit Court of Appeals has explained, [w]e do not hesitate to remand when the Commissioner has not provided good reasons for the weight given to a treating physician s opinion and we will continue remanding when we encounter opinions from ALJs that do not comprehensively set forth the 6 reasons opinion. for the weight assigned to a treating physician s Wilson v. Comm r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004)(quoting Halloran v. Barnhart, 362 F.3d 28, 32-33(2d Cir. 2004)). Accordingly, and for the foregoing reasons, IT IS ORDERED that: 1) Plaintiff s motion, [DE 10], is GRANTED; 2) Defendant s motion, [DE 11], is DENIED; 3) the decision of the Commissioner is REVERSED, and this matter is REMANDED to the Commissioner for further proceedings consistent with this Opinion and Order. This the 4th day of May, 2012. 7

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