REPORT AND RECOMMENDATION
1 THAT: (1) THE ALJ'S NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED
MICHAEL J. NEWMAN, Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and therefore unentitled to Supplemental Security Income ("SSI") and/or Disability Insurance Benefits ("DIB").
A. Procedural History
Plaintiff filed an application for SSI and DIB asserting disability as of July 27, 2011 on account of a number of impairments including, inter alia, cervical and lumbosacral degenerative disc disease, a history of seizures, and bipolar/depressive and anxiety disorders. PageID 64, 282-95.
After an initial denial of his application, Plaintiff received a hearing before ALJ Gregory Kenyon on March 28, 2014. PageID 84. The ALJ issued a written decision on May 27, 2014 finding Plaintiff not disabled. PageID 61-77. Specifically, ALJ Status found as follows:
Thereafter, the Appeals Council denied review on September 29, 2015, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 42. Plaintiff then filed this timely appeal. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007) (noting that, "[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days from the Appeals Council's notice of denial in which to file his appeal").
B. Evidence of Record
In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence in this case. PageID 64-69. Plaintiff, in his Statement of Errors, also summarizes the evidence of record. Doc. 7 at PageID 567-72. The Commissioner, in response to Plaintiff's Statement of Errors, defers to the ALJ's recitation of the evidence, and presents no objection to Plaintiff's summary. Doc. 8 at PageID 585. Except as otherwise noted herein, the undersigned incorporates the summary of evidence as set forth by the ALJ and Plaintiff.
A. Standard of Review
The Court's inquiry on a Social Security appeal is to determine (1) whether the ALJ's non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
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). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). "[A] decision of the Commissioner will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746.
B. "Disability" Defined
To be eligible for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
In his Statement of Errors, Plaintiff argues that the ALJ failed to: (1) give appropriate weight to his treating psychiatrist, Mahmood Rahman, M.D.; and (2) find him credible. Doc. 7 at PageID 574-79. Finding Plaintiff's first alleged error to be well taken, the undersigned does not address the merits of Plaintiff's credibility argument.
"[T]he Commissioner's regulations establish a hierarchy of acceptable medical source opinions[.]" Snell v. Comm'r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id.
Treaters are entitled to the greatest deference because they "are likely to be . . . most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.]" 20 C.F.R. § 404.1527(c)(2). A treater's opinion must be given "controlling weight" if "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record." LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 384 (6th Cir. 2013). Even if a treater's opinion is not entitled to controlling weight, "the ALJ must still determine how much weight is appropriate by considering a number of factors, including 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 any specialization of the treating physician." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).
After treaters, "[n]ext in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once." Snell, 2013 WL 372032, at *9. "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual [claimant] become weaker." Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
Record reviewers are afforded the least deference and these "non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions." Id. "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual [claimant] become weaker." Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
Unless the opinion of the treating source is entitled to controlling weight, an ALJ must "evaluate all medical opinions" with regard to the factors set forth in 20 C.F.R. § 404.1527(c), i.e., length of treatment history; consistency of the opinion with other evidence; supportability; and specialty or expertise in the medical field related to the individual's impairment(s). Walton v. Comm'r of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).
The record contains treatment notes from Dr. Rahman dated from September 2011 through February 2014. PageID 395, 404, 410, 418-19, 432, 542-60. In February 2014, Dr. Rahman issued an extensive narrative report and completed a Mental Impairment Questionnaire (PageID 561-65), in which he noted that Plaintiff "[v]ery often looks apprehensive and depressed"; "[h]as paucity of speech [and] constricted affect and psychomotor retardation"; and "at times shows considerable irritability and severe mood swings." PageID 561. Dr. Rahman then concluded that Plaintiff was "unable to withstand any kind of stress" and "[d]ecompensates fairly rapidly." Id. at 564-65. Dr. Rahman also found that Plaintiff was "markedly"
The ALJ held that Dr. Rahman's opinion was entitled to "no more than minimal weight." PageID 74-75. In so concluding, the ALJ found that Dr. Rahman's opinion was: (1) contradictory to Plaintiff's prior Global Assessment of Functioning ("GAF") scores of 60-65; (2) inconsistent with Plaintiff's day-to-day activities; (3) inconsistent with the opinion of examining psychologist, George Schultz, Ph.D.; and (4) based solely on Plaintiff's subjective complaints. PageID 74-75.
The Court agrees with Plaintiff that the ALJ erred in assessing the weight to be reasonably accorded to Dr. Rahman's opinion. Initially, the Court notes that the ALJ failed to mention the concept of controlling weight when analyzing Dr. Rahman's opinion, or to set forth the required analysis. See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Thus, the Court cannot determine whether the ALJ undertook the "two-step inquiry" required when analyzing treating source opinions. See Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir. 2013). The lack of explanation regarding the "controlling weight [analysis] hinders a meaningful review of whether the ALJ properly applied the treating-physician rule that is at the heart of this regulation." Id. at 377 (citations omitted). On this basis alone, reversal and remand is mandated. See Aytch v. Comm'r of Soc. Sec., No. 3:13-cv-135, 2014 WL 4080075, at *4 (S.D. Ohio Aug 19, 2014).
Further, insofar as the ALJ found Dr. Rahman's opinion "inconsistent with the objective findings of Dr. Schultz," the undersigned notes that any such conflict cannot amount to substantial evidence upon which to deny Dr. Rahman's opinion controlling weight. See Gayheart, 710 F. 3d at 377 (holding that "conflicting substantial evidence must consist of more than the medical opinions of the nontreating and nonexaming doctors" because "[o]therwise the treating-physician rule would have no practical force").
Even assuming, arguendo, that the ALJ adequately conducted and explained the controlling weight test — which the undersigned concludes he did not — the ALJ nevertheless failed to provide good reasons for discounting the weight accorded to Dr. Rahman's opinion.
First, the ALJ found that Dr. Rahman's opinion deserved no more than minimal weight because it contradicted his own treatment notes. PageID 74. In reaching this conclusion, the ALJ ignored Dr. Rahman's abnormal mental status exam findings from 2011 to 2014 — including emotional lability (i.e., excessive emotion), "considerable" agitation, depression and anxiety — as well as Plaintiff's consistent self-reports of depression, low energy, low motivation, low self-esteem, high stress, insomnia, fatigue, helplessness, and worthlessness. PageID 561-63. An "ALJ must consider all the record evidence and cannot `pick and choose' only the evidence that supports his [or her] position." Daniel v. Comm'r of Soc. Sec., No. 3:14-cv-51, 2015 WL 4550406, at *4 (S.D. Ohio Mar. 6, 2015).
Second, Dr. Rahman repeatedly found, upon examination, that Plaintiff appeared "anxious," "guarded," "distracted," "apprehensive and depressed," and that he displayed paucity of speech, a constricted affect, and psychomotor retardation. PageID 419, 456-58, 561, 563. These findings, contrary to the ALJ's conclusion, were based on Dr. Rahman's personal observations during his treatment of Plaintiff from 2011 to 2014, not Plaintiff's subjective complaints. See PageID 404, 419, 456-58, 542-54, 560.
Third, the ALJ found that Dr. Rahman's opinion need not be deferred to because Dr. Rahman's findings were inconsistent with Plaintiff's daily activities. The undersigned finds that, absent meaningful explanation by the ALJ, it is unclear how Plaintiff's minimal day-to-day activities — such as running the water for dishes because he cannot stand to wash them — wholly undermine Dr. Rahman's opinion. PageID 65; see Meece v. Barnhart, 193 F. App'x 456, 465 (6th Cir. 2006) (finding "the fact that Plaintiff engages in minor life activities not inconsistent with disabling" limitations). This is especially so in this case, where the ALJ himself described Plaintiff's daily activities as "fairly limited." PageID 72. Accordingly, the ALJ's perfunctory statement — concerning Plaintiff's limited daily activities — fails to provide a good reason for discounting the weight to be reasonably accorded to Dr. Rahman's opinion.
Finally, the ALJ also rejected Dr. Rahman's opinion on the basis of conflicting Global Assessment of Functioning ("GAF")
Accordingly, the undersigned finds the ALJ's reasoning unsupported by substantial evidence and meriting reversal.
When the ALJ's non-disability determination is unsupported by substantial evidence, the Court must determine whether to remand the matter for rehearing or to award benefits. Generally, benefits may be awarded immediately "if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994).
Here, evidence of disability is not overwhelming, and therefore, a remand for further proceedings is proper so that the ALJ can properly assess all opinion evidence of record anew in light of the foregoing findings.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
Any objections filed shall specify the portions of the Report and Recommendation 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 of 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
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).