You're viewing Docket Item 12 from the case Underwood v. Commissioner of Social Security. View the full docket and case details.

Download this document:




Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 1 of 17 PAGEID #: 548

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

STEVEN UNDERWOOD,

Plaintiff,

v.

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Case No. 1:12-cv-589

Beckwith, J.
Bowman, M.J.

REPORT AND RECOMMENDATION

Plaintiff Steven Underwood filed this Social Security appeal in order to challenge

the Defendant’s findings that he is not disabled. See 42 U.S.C. §405(g). Proceeding

through counsel, Plaintiff presents one claim of error for this Court’s review. As

explained below, I conclude that the ALJ’s finding of non-disability should be

REVERSED and remanded because it is not supported by substantial evidence in the

administrative record.

I. Summary of Administrative Record

In August 2007, Plaintiff filed an application for Disability Insurance Benefits

(DIB), alleging a disability onset date of November 2, 2006 due to physical and mental

physical

impairments.

After Plaintiff’s claims were denied

initially and upon

reconsideration, he requested a hearing de novo before an Administrative Law Judge

(“ALJ”). An administrative hearing was held on May 4, 2011. (Tr. 28-67). At the

hearing, ALJ Gregory G. Kenyon heard testimony from Plaintiff and George Parsons, an

1

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 2 of 17 PAGEID #: 549

impartial vocational expert. On June 16, 2011, the ALJ Kenyon denied Plaintiff’s

application in a written decision. (Tr. 9-27).

The record on which the ALJ’s decision was based reflects that Plaintiff

graduated from high school and has past relevant work as a janitor, stamper and

printing assistant (jogger). Plaintiff was born in 1963 and was 43 years old on his

alleged disability onset date. Upon consideration of the record, the ALJ found that

Plaintiff had the following severe impairments: “obesity, degenerative joint disease of

the knees; hypertension; varicose veins of the lower extremities; depression and mild

anxiety.” (Tr. 14).

The ALJ concluded that none of Plaintiff's impairments alone or in combination

met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subp. P, Appendix

1. Despite these impairments, the ALJ determined that Plaintiff retains the RFC to

perform sedentary work, with the following additional limitations:

(1) occasional stooping and climbing of ramps and stairs; (2) no
crouching, crawling, kneeling, or balancing; (3) no climbing of ladders,
ropes, or scaffolds; (4) no work around hazards such as unprotected
heights or dangerous machinery; (5) limited to performing jobs in which he
would be permitted to use a cane for assistance when ambulating; (6)
occasional operation of foot controls; and (7) restricted to performing
unskilled simple, repetitive tasks.



(Tr. 18). Based upon the record as a whole including testimony from the vocational

expert, and given Plaintiff's age, education, work experience, and RFC, the ALJ

concluded that, while the Plaintiff is unable to perform his past relevant work, he can

nonetheless perform jobs that exist in significant numbers in the national economy,

including such jobs as general office clerk, production planning clerk and bookkeeping

2

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 3 of 17 PAGEID #: 550

cashier. Accordingly, the ALJ determined that Plaintiff is not under disability, as

defined in the Social Security Regulations, and is not entitled to DIB. (Tr. 22-23).

The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff

argues that the ALJ substituted his own opinions in evaluating the medical evidence of

record and as such, his findings are not substantially supported. Upon close inspection,

the undersigned finds Plaintiff’s assignment of error to be well-taken.



II. Analysis

A. Judicial Standard of Review

To be eligible for SSI a claimant must be under a “disability” within the definition

of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). Narrowed to its

statutory meaning, a “disability” includes only physical or mental impairments that are

both “medically determinable” and severe enough to prevent the applicant from (1)

performing his or her past job and (2) engaging in “substantial gainful activity” that is

available in the regional or national economies. See Bowen, 476 U.S. at 469-70 (1986).

When a court is asked to review the Commissioner’s denial of benefits, the

court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported

by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal

quotation omitted). In conducting this review, the court should consider the record as a

whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence

supports the ALJ’s denial of benefits, then that finding must be affirmed, even if

3

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 4 of 17 PAGEID #: 551

substantial evidence also exists in the record to support a finding of disability. Felisky v.

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone
of choice’ within which the Secretary may proceed without interference
from the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.

Id. (citations omitted).

In considering an application for disability benefits, the Social Security Agency is

guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if

the claimant is still performing substantial gainful activity; at Step 2, the Commissioner

determines if one or more of the claimant’s impairments are “severe;” at Step 3, the

Commissioner analyzes whether the claimant’s impairments, singly or in combination,

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner

determines whether or not the claimant can still perform his or her past relevant work;

and finally, at Step 5, if it is established that claimant can no longer perform his or her

past relevant work, the burden of proof shifts to the agency to determine whether a

significant number of other jobs which the claimant can perform exist in the national

economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir.

2006); 20 C.F.R. §§404.1520, 416.920.

A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking

benefits must present sufficient evidence to show that, during the relevant time period,

he or she suffered an impairment, or combination of impairments, expected to last at

4

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 5 of 17 PAGEID #: 552

least twelve months, that left him or her unable to perform any job in the national

economy. 42 U.S.C. § 423(d)(1)(A).

B. The ALJ’s Decision is Not Supported by Substantial Evidence

1. Relevant Evidence and the ALJ Decision

In November 2006, Plaintiff left his job (indefinitely) in the printing industry due to

severe right knee pain. Thereafter, in March 2007, Dr. Marc Schneider performed

arthrosporic surgery on Plaintiff’s knee. (Tr. 303-346).

The record also indicates that Plaintiff suffered from venous insufficiency in both

legs. In May 2007, Dr. Alan Anneberg, M.D. noted that plaintiff had complaints of pain,

aching, tiredness, heaviness, burning, numbness, and fatigue in both of his lower

extremities. Plaintiff reported that his symptoms worsen with standing and improve with

elevation. (Tr. 358-367). A little over one month later, Dr. Anneberg discussed with

plaintiff the risks and benefits of ligation and radiofrequency ablation to relieve his

symptoms as well as doing a phlebectomy. (Tr. 359). During this same time, Plaintiff

continued post-operatively to have significant pain in his right knee. Dr. Schneider

asserted in a July 5, 2007, letter that it might be necessary for Plaintiff to undergo a total

knee arthroplasty. He further noted plaintiff’s obesity problems and that Plaintiff weighed

three hundred and two pounds. Dr. Schneider mentioned possible lap-band surgery to

help his conditions. Dr. Schneider also indicated that Plaintiff had right knee

osteoarthritis with pain. (Tr. 374).

In October 2007, Dr. Cindi Hill, M.D. reviewed Plaintiff’s medical file at the

request of the state agency and provided a functional assessment report. Notably, Dr.

Hill assigned Plaintiff limitations consistent with an RFC to perform light exertional work.

5

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 6 of 17 PAGEID #: 553

Dr. Hill noted that Plaintiff’s obesity, right knee disability, and his advanced venous

insufficiency are synergistic. She further noted that his venous insufficiency,

aggravated by his obesity, is worsened by prolonged standing. She also indicated that

Plaintiff would have no ability to engage in “crouching.” (Tr. 394, 397). Additionally, Dr.

Hill also noted that there were no treating or examining source statements regarding

Plaintiff’s physical capacities in the file. (Tr. 401).

Plaintiff continued to suffer from morbid obesity as his weight increased to three

hundred and fifty-two pounds by 2010. (Tr. 453). Plaintiff was diagnosed with

hypertension and testified that he was on blood pressure medications. In 2010, Plaintiff

received treatment for depression and anxiety after the death of his mother. Notably,

Plaintiff lived with, and cared for, his mother until her death. Initially, he was diagnosed

with an adjustment disorder with mixed anxiety and depressed mood in which his

therapist assigned a Global Assessment Functioning (GAF)1 score of 45. (Tr. 438). In

April of 2011, he was diagnosed with major depressive disorder and assigned a GAF

score of 55.2 (Tr. 425).

1A GAF score represents "the clinician's judgment of the individual's overall level of functioning."
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th
ed., text rev. 2000). The GAF score is taken from the GAF scale, which "is to be rated with
respect only to psychological, social, and occupational functioning." Id. The GAF scale ranges
from 100 (superior functioning) to 1 (persistent danger of severely hurting self or others, persistent
inability to maintain minimal personal hygiene, or serious suicidal act with clear expectation of
death). Id. at 34. A GAF score of 45 indicates Serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job, cannot work).

2 A GAF score of 55 indicates moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers).

6

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 7 of 17 PAGEID #: 554

The record also contains treatment notes from Mahboob Noory, M.D. from

August 13, 2010 though February 11, 2011. Dr. Noory treated Plaintiff for hypertension,

general osteoarthritis, low back pain, and lumbago. (Tr. 457).

On February 7, 2011, Richard T. Sheridan, M.D., performed a consultative

evaluation of Plaintiff for the Bureau of Disability Determination of the Rehabilitation

Services Commission. In addition to completing a medical exam on plaintiff, Dr.

Sheridan performed manual muscle testing and range of motion testing on plaintiff. Dr.

Sheridan diagnosed exogenous obesity, hypertension, varicose veins and stasis

dermatitis in both lower extremities, pancompartmental osteoarthritis, severe on the

right and moderate on the left, and status post right knee arthrosporic surgery.

Dr. Sheridan concluded that Plaintiff is able to lift/carry up to ten pounds,

sit/stand/walk one hour each at time, and sit/stand/walk one hour total in and eight-hour

workday. He limited Plaintiff to occasional reaching bilaterally, continuous handling,

fingering, and feeling, never pushing/pulling on the right, and occasional pushing/pulling

on the left. Dr. Sheridan also concluded that Plaintiff can never balance, stoop, kneel,

crouch, crawl, climb, or use foot controls. Thus, Dr. Sheridan concluded that Plaintiff

was limited to less than sedentary work. (Tr. 408-13).

In addition, after the hearing decision was issued, Plaintiff sought and obtained

another RFC evaluation performed by The Center For Physical Therapy. (Tr. 466-469).

The results of this evaluation and testing were submitted to the Appeals Council of the

Social Security Administration for consideration on plaintiff’s request for review of the

hearing decision. In this evaluation, after taking a history and performing various range

of motion and strength testing, as well as testing and observing functional activities, the

7

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 8 of 17 PAGEID #: 555

physical therapist concluded that plaintiff did not possess the RFC to perform full time

sedentary work. The therapist, Karen Scholl, recommended that Plaintiff’s work be

limited to four hours in a workday and that plaintiff avoid lifting more than six pounds on

an occasional basis. She also ruled out bending, squatting, stooping, and climbing. In

this June, 2011, evaluation, plaintiff’s weight was listed to be 354 pounds. (Tr. 468).

In light of the foregoing, at step two in the sequential process, the ALJ found that

Plaintiff has the following severe impairments: obesity; degenerative joint disease of the

knees; hypertension; varicose veins of the lower extremities; depression; and mild

anxiety. The ALJ determined that Plaintiff’s physical impairments do not meet or

medically equal the level of severity for Listing 1.02 and/or Listing 4.1. In making this

determination the ALJ indicated that he considered the impact of Plaintiff’s obesity on

his limitation of function “including the claimant’s ability to perform routine movement

and necessary physical activity within the work environment.” The ALJ found that

Plaintiff’s mental impairments, considered singly or in combination, did not meet or

medically equal the criteria outlined in Listings 12.04 and 12.06. With respect to the

paragraph B criteria the ALJ found that Plaintiff’s mental impairments resulted in mild

limitations in activities of daily living and social functioning and moderate limitations in

concentration persistence and pace. (Tr. 17). Accordingly, despite Plaintiff's

impairments, the ALJ determined that he retained a RFC to perform a limited range of

sedentary work. (Tr. 18).

With respect to the opinion evidence, the ALJ gave “some weight” to the findings

of Dr. Hill, finding that “reducing the claimant to light exertion work does not fully

account for the claimant’s limited mobility due to obesity, knee impairment, and varicose

8

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 9 of 17 PAGEID #: 556

veins.” (Tr. 19). The ALJ also gave “some weight” to the opinions of Dr. Sheridan.

Specifically, the ALJ gave “more weight” to Dr. Sheridan’s postural limitations in order to

accommodate Plaintiff’s complaints of knee joint pain and limitation of motion as well

has his obesity. The ALJ, however, gave “less weight” to Dr. Sheridan’s remaining

limitations. Notably, the ALJ determined that Dr. Sheridan’s restriction on Plaintiff’s

sitting for one hour at a time and for a total of one hour in an eight-hour workday was

not supported by the record. (Tr. 19). In this regard, the ALJ noted that there is no

evidence of any back or other similar problem that would limit Plaintiff’s ability to sit. Id.

The ALJ also disregarded Dr. Sheridan’s pulling/pulling prohibition, finding instead that

there is no evidence relating to upper extremity problems. The ALJ also rejected Dr.

Sheridan’s opinion that Plaintiff should not use foot controls because the evidence of

record suggests that Plaintiff has sufficient knee joint mobility to operate foot controls

occasionally. Id The ALJ further rejected Dr. Sheridan’s limitation that Plaintiff could

stand or walk for one hour at a time, finding instead that his RFC for sedentary level

restriction fully accommodate Plaintiff’s restricted mobility.

With respect to Plaintiff's mental impairments, the ALJ determined that Plaintiff

had mild limitations in activities of daily living and social functioning and a moderate

limitation in the areas of concentration persistence and pace. The ALJ further

determined that Plaintiff's complaints of disabling depression since his mother died in

January 2010 were not credible.

2. ALJ’s RFC determination fails to comport with Agency Regulations and

Controlling Law

At the outset, the Court notes that Plaintiff's statement of errors appears to

amend Plaintiff's onset date to August 1, 2010 as the record evidence indicates that

9

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 10 of 17 PAGEID #: 557

Plaintiff’s condition deteriorated in 2010 and 2011. Notably, in August 2010, Plaintiff’s

depression had increased and he was assigned a GAF score of 45, which indicates

serious symptoms. The record also contains treatment notes from Dr. Noory from 2010

and 2011 indicating that Plaintiff was suffering from general osteoarthritis, low back

pain, and lumbago. (Tr. 457). Thus, according to Plaintiff, Dr. Sheridan's RFC

assessment in combination with the records of Dr. Noory establish substantial evidence

of disability as of August 1, 2010. As such, for purposes of the judicial review of the

instand appeal, Plaintiff onset date has been amended to August 1, 2010.

With respect to the ALJ’s findings, Plaintiff asserts that the ALJ improperly

selectively reviewed the record evidence and improperly weighed the opinion evidence

in making his determination that a medical improvement occurred. Specifically, Plaintiff

contends that the ALJ improperly rejected the findings of Dr. Sheridan, and instead,

formulated Plaintiff's RFC based upon his own interpretation of the medical evidence.

The undersigned agrees.

The ALJ must consider, and weigh, all medical opinions that he or she receives

in evaluating a claimant's case. 20 C.F.R. § 404.1527(c). Importantly, in weighing the

medical evidence, “ALJs must not succumb to the temptation to play doctor and make

their own independent medical findings.” Simpson v. Comm'r of Soc. Sec., 344

Fed.Appx. 181, 194 (6th Cir. 2009). Accordingly, “an ALJ may not substitute his [or her]

own medical judgment for that of the treating physician where the opinion of the treating

physician is supported by the medical evidence.” Id. (internal quotations omitted); see

also Bledsoe v. Comm'r of Soc. Sec., No. 1:09cv564, 2011 WL 549861, at *7, 2011 U.S.

Dist. LEXIS 11925, at *7 (S.D.Ohio Feb. 8, 2011) (“An ALJ is not permitted to substitute

10

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 11 of 17 PAGEID #: 558

her own medical judgment for that of a treating physician and may not make her own

independent medical findings”). In other terms, “[w]hile an ALJ is free to resolve issues

of credibility as to lay testimony, or to choose between properly submitted medical

opinions, the ALJ cannot substitute his [or her] own lay ‘medical’ opinion for that of a

treating or examining doctor.” Beck v. Comm'r of Soc. Sec., No. 1:10–cv–398, 2011 WL

3584468, at *14, 2011 U.S. Dist. LEXIS 90029, at *14 (S.D. Ohio June 9, 2011).

Upon close inspection, the undersigned finds that the ALJ's RFC determination

was based in part, on his own non-medical opinion relating to the limitations caused by

Plaintiff's impairments. As recognized by this Court, “[t]he ALJ must not substitute his

own judgment for a doctor's conclusion without relying on other medical evidence or

authority in the record.” Mason v. Comm'r of Soc. Sec., No. 1:07-cv-51, 2008 WL

1733181, at *13 (S.D.Ohio April 14, 2008) (Beckwith, J.; Hogan, M.J.) (citing Hall v.

Celebrezze, 314 F.2d 686, 690 (6th Cir.1963); Clifford v. Apfel, 22.7 F.3d 863, 870 (7th

Cir.2000); Ferguson v. Schweiker, 765 F.2d 31, 37 (3rd Cir.1985); Sigler v. Sec'y of

H.H.S., 892 F.Supp. 183, 187-88 (E.D. Mich.1995)). See also Rosa v. Callahan, 168

F.3d 72, 78-79 (2nd Cir.1999) (“[T]he ALJ cannot arbitrarily substitute his own opinion

for competent medical opinion.”); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996)

(“ALJs must not succumb to the temptation to play doctor and make their own

independent medical findings”).

In this case,the ALJ’s RFC determination (at least in part) was not based on any

medical opinion and was clearly formulated based upon his own independent medical

findings. This was clear error. Notably, the ALJ determined that the severity of the

Plaintiff’s knee

joint complaints are undermined by his current physician’s

recommendation that he get “regular aerobic exercise.” (Tr. 18). The ALJ’s finding in

11

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 12 of 17 PAGEID #: 559

this regard improperly misinterprets the medical evidence. The treatment notes cited by

the ALJ indicate that Plaintiff was seen by Dr. Noory on November 12, 2010 for an

evaluation of his hypertension. (Tr. 460-62). With respect to Plaintiff’s treatment

relating to hypertension, Dr. Noory advised: (1) medical begin HCTZ in addition to his

current meds; (2) dietary sodium restriction; (3) regular aerobic exercise and (4) recheck

in 3 months. (Tr. 461). Additionally, the ALJ failed to mention that Dr. Noory’s

treatment notes from that same visit also indicate “low back and knees are tender and

ROM (range of motion) limited due to pain.” (Tr. 461). More importantly, the ALJ,

(without relying on a physician’s opinion or other medical evidence in the record)

determined that a directive to perform aerobic exercise for hypertension negates

Plaintiff’s claim of disabling knee joint pain and/or somehow establishes that Plaintiff is

able to sustain gainful work activity for 40 hours per week.3

Furthermore, the ALJ rejected Dr. Sheridan’s opinion that Plaintiff be restricted to

sitting no more than one hour at a time and/or a total of one hour per day based upon

his own determination that there is no evidence of any back or other similar problem

which would limit Plaintiff’s ability to sit. The ALJ also rejected Dr. Sheridan’s

determination that Plaintiff could only stand or walk for one hour per day, asserting that

“the sedentary level restrictions in this case fully accommodate the claimant’s reduced

mobility.” (Tr. 19). The ALJ, however, fails to identify the evidence of record in support

of his conclusion. To the contrary, the record evidence establishes that Plaintiff suffers

3 According to SSR 96-8p, an RFC is an individual's maximum remaining ability to do sustained
work activities in an ordinary work setting on a "regular and continuing" basis. See SSR 96-8p at
28. "A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent
work schedule." Id.; See also Sims v. Apfel, 172 F.3d 879, 880 (10th Cir. 1999) (defining a
"regular and continuing basis" as "8 hours a day, for 5 days a week, or an equivalent work
schedule").

12

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 13 of 17 PAGEID #: 560

from severe knee and joint pain which is exacerbated by his obesity. As noted above

Plaintiff is 5'10" and weights over 350 pounds. As such, these conditions would indicate

limited mobility and difficulty sitting and standing for prolonged periods. Notably, upon

examination, Dr. Sheridan noted that “pancompartmental tendernes” and “severe

creiptus, synovities and effusion” of the right knee. (Tr. 420). Dr. Sheridan further noted

that he “walked with a right leg-limp” and “gets up out his chair with severe difficulty.”

(Tr. 416). Dr. Noory’s treatment records also indicate back and knee pain.

The undersigned does not dispute that it is the ALJ's prerogative to resolve

conflicts and weigh the evidence of record. However, it appears in making such

determination , the ALJ, in part, impermissibly acted as his own medical expert. See

Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir.1985); Kent v. Schweiker, 710 F.2d

110, 115 (3d Cir.1983); Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir.1975). As

detailed above, while an ALJ is free to resolve issues of credibility as to lay testimony,

or to choose between properly submitted medical opinions, he is not permitted to make

his own evaluations of the medical findings, which is exactly what occurred here.

The Court recognizes that the ALJ reserves the right to decide certain issues,

such as a claimant's RFC. 20 C.F.R. § 404.1527(d). Nevertheless, in assessing a

claimant's RFC, the ALJ must consider all relevant evidence of record, including

medical source opinions discussing the severity of a claimant's impairments. See 20

C.F.R. §§ 404.1527(d), 404.1545(a). Furthermore, this Court has stressed the

importance of medical opinions to support a claimant's RFC, and cautioned ALJs

against relying on their own expertise in drawing RFC conclusions from raw medical

data. See Isaacs v. Comm'r of Soc. Sec., No. 1:08–CV–00828, 2009 WL 3672060, at

*10, 2009 U.S. Dist. LEXIS 102429, at *10 (S.D.Ohio Nov. 4, 2009) ("The residual

13

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 14 of 17 PAGEID #: 561

functional capacity opinions of treating physicians, consultative physicians, and medical

experts who testify at hearings are crucial to determining a claimant's RFC because ‘[i]n

making the residual functional capacity finding, the ALJ may not interpret raw medical

data in functional terms’”) (quoting Deskin v. Comm'r of Soc. Sec., 605 F.Supp.2d 908,

912 (N.D.Ohio 2008)); Mabra v. Comm'r of Soc. Sec., No. 2:11–cv–407, 2012 WL

2319245, at *8–9, 2012 U.S. Dist. LEXIS 84504, at *20–34, (S.D. Ohio June 19, 2012).

See also Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999) ("As a lay person, however,

the ALJ was simply not qualified to interpret raw medical data in functional terms and no

medical opinion supported the [ALJ's RFC] determination").

In addition, with respect to Plaintiff’s mental impairments, the ALJ determined

that Plaintiff was seen only a few times at Mental Health and Recovery in 2010 and

2011, as such, the ALJ determined that his RFC restriction for unskilled simple

repetitive tasks should be sufficient to accommodate any depression or anxiety Plaintiff

may experience. (Tr. 18). To the extent that the ALJ discounted Plaintiff's claimed

mental impairment because he failed to seek formal treatment, such a determination

was in error.

The Sixth Circuit has held that a claimant's failure to seek formal mental health

treatment is “hardly probative” of whether the claimant suffers from a mental

impairment, Burton v. Apfel, 208 F.3d 212 (6th Cir. 2000) (table), and “‘should not be a

determinative factor in a credibility assessment’” relating to the existence of a mental

impairment. Strong v. Soc. Sec. Admin., 88 Fed. Appx. 841, 846 (6th Cir. 2004) (quoting

Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir.1989) (“[I]t is a questionable

practice to chastise one with a mental impairment for the exercise of poor judgment in

seeking rehabilitation”)). We recognize that ALJs must be careful not to assume that a

14

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 15 of 17 PAGEID #: 562

patient's failure to receive mental-health treatment evidences a tranquil mental state.

For some mental disorders, the very failure to seek treatment is simply another

symptom of the disorder itself. White v. Comm'r of Soc. Sec., 572 F.3d 272, 283 (6th

Cir. 2009) (citing Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (listing cases

recognizing that a mentally ill person's noncompliance with treatment “can be ... the

result of the mental impairment itself and, therefore, neither willful nor without a

justifiable excuse”) (citations, internal quotation marks, and brackets omitted).

In sum, the Court recognizes that there are limited occasions when the medical

evidence is so clear, and so undisputed, that an ALJ would be justified in drawing

functional capacity conclusions from such evidence without the assistance of a medical

source. See Deskin, 605 F.Supp.2d at 912 (“To be sure, where the medical evidence

shows relatively

little physical

impairment, an ALJ permissibly can render a

commonsense

judgment about

functional capacity even without a physician's

assessment”). Such is not the case here. The evidence of record shows that Plaintiff’s

mental and physical conditions deteriorated after the death of his mother in 2010. He

suffered from depression and his weight increased to over 350 pounds, exacerbating

his back and knee impairments. Moreover, the only medical opinion rendered after that

date is that of Dr. Sheridan, who examined Plaintiff and provided an assessment of

Plaintiff’s functional limitations in February 2011. The ALJ rejected, in part, Dr.

Sheridan’s findings based upon his own interpretation of the medical data of record.

Because the ALJ improperly substituted his interpretation of the medical evidence in

place of the medical opinion so record, the undersigned finds that the ALJ's RFC

determination lacks substantial support and this matter should be remanded for further

proceedings.

15

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 16 of 17 PAGEID #: 563

In addition, in light of Plaintiff’s amended onset date and the purported increase

in his impairments since 2010, on remand, the ALJ should obtain a consultative

examination and/or obtain testimony from a medical expert in order to properly

determine Plaintiff’s mental and physical RFC as of August 1, 2010.

III. Conclusion and Recommendation

In light of the foregoing the undersigned finds that this matter should be

remanded pursuant to Sentence Four of § 405(g) for further proceedings consistent with

this Report and Recommendation. A sentence four remand under 42 U.S.C. §405(g)

provides the required relief in cases where there is insufficient evidence in the record to

support the Commissioner's conclusions and further fact-finding is necessary. See

Faucher v. Secretary of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994)

(citations omitted). In a sentence four remand, the Court makes a final judgment on the

Commissioner's decision and "may order the Secretary to consider additional evidence

on remand to remedy a defect in the original proceedings, a defect which caused the

Secretary's misapplication of the regulations in the first place." Id. at 175. All essential

factual issues have not been resolved in this matter, nor does the current record

adequately establish Plaintiff's entitlement to benefits. Id. at 176.

For the reasons explained herein, IT IS RECOMMENDED THAT: The decision of

the Commissioner to deny Plaintiff DIB benefits be REVERSED and this matter be

REMANDED under sentence four of 42 U.S.C. §405(g) consistent with this Report and

Recommendation.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

16

Case: 1:12-cv-00589-SSB-SKB Doc #: 12 Filed: 07/10/13 Page: 17 of 17 PAGEID #: 564

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

STEVEN UNDERWOOD,

Plaintiff,

v.

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

NOTICE

Case No. 1:12-cv-589

Beckwith, J.
Bowman, M.J.

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. 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).

17