United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
Rita Lynn Conn brings this matter under 42 U.S.C. §
405(g) seeking judicial review of an administrative decision
of the Acting Commissioner of Social Security. The Court,
having reviewed the record and the cross-motions for summary
judgment filed by the parties, will REVERSE
and REMAND the Commissioner's decision
because the ALJ's finding pertaining to the severity of
Conn's gastrointestinal impairments is not supported by
substantial evidence and the ALJ committed reversible error
at multiple steps of the sequential evaluation.
Standard for Determining Disability
the Social Security Act, a disability is defined as
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which 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). In determining disability, an Administrative
Law Judge (“ALJ”) uses a five-step analysis.
See Jones v. Comm'r of Soc. Sec., 336 F.3d 469,
474 (6th Cir. 2003). Step One considers whether the claimant
is still performing substantial gainful activity; Step Two,
whether any of the claimant's impairments are
“severe”; Step Three, whether the impairments
meet or equal a listing in the Listing of Impairments; Step
Four, whether the claimant can still perform past relevant
work; and, if necessary, Step Five, whether significant
numbers of other jobs exist in the national economy which the
claimant can perform. As to the last step, the burden of
proof shifts from the claimant to the Commissioner.
Id.; see also Preslar v. Sec'y of Health
& Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
Procedural and Factual History
initially filed an application for Title XVI Supplemental
Social Security Insurance Benefits in August 2014, alleging
disability as of July 1, 2014. [TR 171]. Conn alleged
disability due to incontinence, stress, nerves, high blood
pressure, thyroid issues, diabetes, and heart problems. [TR
to her current application for disability benefits, Conn was
treated by Dr. John Michael Watts, her primary care
physician, beginning in late 2013 for numerous physical and
mental health complaints including chronic pain and numbness,
frequent bowel movements, incontinence, abdominal cramping,
headaches, hand tremors, fatigue, joint pain, diabetes,
depression, and anxiety, among other ailments. [TR 318-21,
353-54, 383-84, 445-56]. Dr. Watts opined that Conn was
disabled. [TR 359, 373].
complaints of abdominal cramping, incontinence, and frequent
bowel movements, Dr. Watts referred Conn to Dr. Morris Beebe,
a gastroenterologist. [TR 322-29]. An EGD and colonoscopy
were performed on Conn. [TR 325]. These tests revealed a
small hiatal hernia, mild nonerosive gastritis,
diverticulosis, and a rectal polyp. [Id.].
Conn filed her application for benefits, Dr. Robert Nold
performed a consultative evaluation of Conn. [TR 344-50].
During the consultative examination, Conn reported
incontinence of both the bowel and bladder due to stress,
anxiety issues, high blood pressure, low thyroid, type 2
diabetes, and heart problems. [TR 344]. Based on the history
provided by Conn, limited medical records, and a physical
examination, Dr. Nold reported that Conn had a normal range
of motion in the lower back. [TR 347]. Dr. Nold also reported
that Conn may have difficulty squatting, standing, stooping,
and kneeling due to osteoarthritis in her right knee.
[Id.]. Additionally, Nold noted that “[f]ine
manipulation would be difficult because of her tremor
involving her hands and forearms.” [Id.]. Nold
stated that Conn's problems with bowel and bladder
incontinence had not been fully explored but noted that Conn
had a colonoscopy in early 2014 that showed one polyp and the
possibility of irritable bowel syndrome and Crohn's
disease. [Id.]. Nold also reviewed Conn's
history of chest pain and noted that she had a heart
catheterization in 2013 and was placed on medication for
coronary artery disease. [Id.]. Finally, Nold
mentioned that Conn's high blood pressure, type 2
diabetes, and migraine headaches are managed with medication.
October 17, 2014, Dr. Marvin Bittinger, a state agency
physician, opined that Conn had exertional limitations but
that she could occasionally lift and carry twenty pounds and
could frequently carry ten pounds. [TR 76-78]. Additionally,
Bittinger stated that Conn could stand and walk, with normal
breaks, for a total of about six hours in an eight-hour
workday. [Id.]. Finally, Bittinger found that Conn
could occasionally climb ramps and stairs, kneel, crouch, and
crawl and that Conn could frequently balance and stoop.
on May 4, 2015, Dr. William Waltrip performed a consultative
evaluation of Conn. [TR 386-92]. Conn reported symptoms and
medical disorders similar to those reported at her previous
examination with Dr. Nold, including, incontinence, high
blood pressure, stress and nerve problems, thyroid problems,
diabetes, and heart problems. [TR 386]. Dr. Waltrip noted
that Conn reported bowel incontinence and that she has
diarrhea immediately after eating. [Id.].
his physical examination and review of Conn's medical
history, Dr. Waltrip observed that Conn had problems with
nervous disorder and stress that had been previously
evaluated. [TR 389]. Additionally, Waltrip observed that Conn
has a gastrocolic reflex. [Id.]. Furthermore, Dr.
Waltrip observed that Conn was “very minimally limited
in her ability to walk, stand or sit.” [Id.].
Waltrip stated that Conn should be able to lift objects of
25-30 pounds without limitation, that Conn had good strength
of grip, and could perform fine and gross manipulations.
[Id.]. Finally, Waltrip noted that Conn had no
limitation of hearing, seeing, or speaking. [Id.].
2015, Dr. Donna Sadler, a state agency physician, made
findings that were analogous to the previous findings of Dr.
Bittinger. [TR 96-100]. Sadler opined that Conn could stand
or walk, with normal breaks, for a total of four hours and
that Conn could sit, with normal breaks for about six hours
in an eight-hour workday. [TR 97]. Finally, Dr. Sadler found
that Conn had unlimited balance but that she could only
crouch occasionally. [Id.].
the record was reviewed by two state agency health
consultants, Drs. Maxine Ruddock and Alex Guerrero. [TR
74-75, 94-95]. The state agency consultants observed that
Conn had anxiety in the context of fear of soiling herself.
[TR 75, 95]. Even so, the consultants both found that Conn
had non-severe mental impairment. [TR 74-75, 94-95].
claim for benefits was denied initially and upon
reconsideration. [TR 79, 101]. Subsequently, Conn pursued her
claims at an administrative hearing in front of ALJ Jonathan
Leiner on July 25, 2016. [TR 33-68]. Conn was represented by
an attorney at the hearing.
hearing, Conn testified that her “bowels” were
her most serious medical issue. [TR 38]. Conn testified that
she had lost approximately ten pounds. [TR 39]. Conn reported
that her gastrointestinal issues led to frequent bowel
movements and required her to use the restroom ten times per
day on average. [Id.]. Additionally, Conn reported
issues with incontinence and reported that Dr. Watts had
prescribed Amodil for her symptoms. [TR 40-41]. Furthermore,
Conn reported that she used over-the-counter medications and
had tried dieting to relieve her symptoms. [Id.].
addition to gastrointestinal issues, Conn testified about
other medical issues such as radiating neck pain,
fibromyalgia, tremors in her hands and arms, arthritis, heart
issues, migraines, and sleep apnea, among other conditions
and symptoms. [TR 42-49, 54-62].
Jane Hall, a vocational expert, also testified at the
hearing. [TR 62-67]. Hall testified that Conn was approaching
retirement age, had a high-school education, and had worked
as a cardiac monitor at a regional hospital. [TR 63]. Hall
explained that the position of a cardiac monitor is a
sedentary position and is considered skilled. [Id.].
Hall testified that the Dictionary of Occupational Titles
(“DOT”) Code for the position of cardiac monitor
is 078.365-010. [Id.].
presented two hypotheticals to the vocational expert. First,
the ALJ asked the vocational expert to assume a hypothetical
individual of Conn's age, education, and work experience,
with limitations such as only being able to walk or stand
four to eight hours, only being able to sit four hours, and
migraine headaches lasting between two to eight hours per day
two days per week. [TR 64-65]. The vocational expert
responded that “[t]his individual could not complete a
normal workweek.” [TR 65].
the ALJ asked the vocational expert to assume a hypothetical
individual of Conn's age, education, and work experience,
who can stand and walk for four hours in an eight-hour
workday, can sit for six hours in an eight-hour workday, and
can perform frequent, but not repetitive bilateral feeling
and handling, among other factors. [TR 65-66]. The vocational
expert testified that this hypothetical individual could
perform past work. [TR 66].
Leiner issued an unfavorable decision on January 4, 2017,
denying Conn's claims and finding that she was not
disabled. [TR 18-27].
first step of the sequential analysis, the ALJ found that
Conn had not engaged in substantial gainful activity since
July 21, 2014. [TR 20].
two, the ALJ found that Conn suffered from the following
severe impairments: neck and back disorders, tremor, knee
disorder, diabetes mellitus, migraine headaches, and obesity.
[TR 20-23]. The ALJ determined that Conn did not suffer from
any severe gastrointestinal impairment, cardiac impairment,
obstructive sleep apnea, or mental impairment. [TR 22].
Pertaining to Conn's gastrointestinal impairment,
specifically bowel incontinence, the ALJ found that this
impairment was not severe because the documentary record
shows no evidence of weight loss. [TR 22]. Additionally, the
ALJ considered the four broad functional areas for evaluating
mental disorders and found that Conn's mental impairments
resulted in no more than a mild limitation and no episodes of
decompensation. [TR 22-23].
three, the ALJ concluded that Conn did not experience any
impairment or combination of impairments that meets or
medically equals the severity of any of the listed
impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. [TR 23].
In making this determination, the ALJ found that Conn's
neck, back, and knee disorders failed to meet or equal the
severity of any of the listing requirements, particularly
Section 1.02 and 1.04. [Id.]. Additionally, the ALJ
found the neither Conn's migraine headaches nor her
tremors met or equaled the severity of any of the listing
requirements, specifically Section 11.01. [Id.].
Finally, the ALJ concluded that Conn's obesity, viewed
alone and in combination, failed to meet the listing
requirements and that endocrine disorders, such as diabetes
mellitus, were to be evaluated based on the results those
disorders had on other body systems. [Id.].
four, the ALJ found that Conn retained the residual function
capacity to perform a broad range of light work. [TR 23]. The
ALJ explained that Conn can lift twenty pounds occasionally
and ten pounds regularly, can stand and walk for four hours
in an eight-hour workday, can sit for six hours in an
eight-hour workday, and can perform frequent bilateral
feeling and handling. [TR 23-24]. The ALJ noted that Conn
testified that her worst impairment were gastrointestinal
issues but explained that Conn had not required additional
specialized medical treatment. [TR 24]. The ALJ also noted
Conn's radiating neck pain and inability to walk for long
periods of time. [Id.].
so, the ALJ found “that the claimant's medically
determinable impairments cannot reasonably be expected to
impose symptoms of the intensity, persistence, and limiting
effects as [Conn] alleges.” [TR 24]. Additionally, the
ALJ found that Conn's subjective allegations and hearing
testimony were unpersuasive. [TR 25]. Again, the ALJ
emphasized that Conn's lack of weight loss appeared
inconsistent with her asserted debilitating diarrhea and
bowel incontinence. [Id.]. The ALJ appears to have
assigned controlling weight to the opinions of the two state
agency physicians, Dr. Nold and Dr. Waltrip. [TR 26-27]. As a
result, the ALJ concluded that Conn could perform past
relevant work as a cardiac monitor and did not proceed to
step five. [TR 27].
Appeals Council denied review of Conn's claim. [TR 1-5].
Having exhausted her administrative remedies, Conn pursued
judicial review of the Commissioner's decision by filing
this action on January 6, 2018. [DE 2]. Pursuant to the
Court's Standing Scheduling Order [DE 10], Conn moved for
summary judgment on June 3, 2018, [DE 11] and the
Commissioner moved for summary judgment on June 29, 2018 [DE
13]. As a result, this matter is ripe for review.
Standard of Review
reviewing the ALJ's ruling, this Court may not “try
the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Ulman v.
Comm'r of Soc. Sec, 693 F.3d 709, 713 (6th Cir.
2012). This Court determines only whether the ALJ's
ruling is supported by substantial evidence and was made
pursuant to proper legal standards. Cutlip v. Sec'y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994). “Substantial evidence” is defined as
“more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Id. The Court is to affirm the decision, provided it
is supported by substantial evidence, even if this Court
might have decided the case differently. See Her v.
Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir.
so, the existence of substantial evidence supporting the
Commissioner's decision cannot excuse failure of an ALJ
to follow a mandatory regulation that “is intended to
confer a procedural protection” for the claimant.
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
543, 546-47 (6th Cir. 2004). “To hold otherwise ...
would afford the Commissioner the ability [to] violate the
regulation with impunity and render the protections promised
therein illusory.” Id. at 546; see also
Cole v. Comm'r of Soc. Sec., 661 F.3d 931, 937 (6th
Cir. 2011) (“An ALJ's failure to follow agency
rules and regulations ‘denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be
justified based upon the record.'” (quoting
Blakley v. Comm'r of Soc. Sec., 581 F.3d 399,
409 (6th Cir. 2009))).
the ALJ must provide a discussion of “findings and
conclusions, and the reasons or basis therefor, on all the
material issues of fact, law, or discretion presented on the
record.” 5 U.S.C. § 557(c)(3)(A). This requirement
is “necessary in order to facilitate effective and
meaningful judicial review.” Reynolds v. Comm'r
of Soc. Sec., 424 Fed.Appx. 411, 415 (6th Cir. 2011).
raises three main issues in this action. [DE 11 at 1-2, 5-13,
Page ID # 601-02, 605-13]. First, Conn claims that the ALJ
erred in evaluating the severity her digestive disorder and
mental health conditions. Second, Conn asserts that the ALJ
erred by not addressing the opinion of her primary care
provider, Dr. Watts. Third, Conn claims that the ALJ ...