MEMORANDUM AND ORDER
CLIFTON L. CORKER, Magistrate Judge.
This matter is before the United States Magistrate Judge, with the consent of the parties and an order of reference pursuant to 28 U.S.C. § 636 for final disposition. Plaintiff's application for Disability Insurance Benefits under the Social Security Act was administratively denied following a hearing before an Administrative Law Judge ["ALJ"]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 15], and the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 17].
I. Standard of Review
The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Listenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "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." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
II. Sequential Evaluation Process
The applicable administrative regulations require the Commissioner to utilize a five-step sequential evaluation process 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). 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).
III. Plaintiff's Vocational Characteristics
The Vocational Expert ["VE"] who testified at plaintiff's administrative hearing defined plaintiff's past relevant work as she performed it as an "Account Executive." Although the Dictionary of Occupational Titles ["DOT"] states that job, 164.167-010, as sedentary, the VE stated that plaintiff performed it at a light level of exertion [Tr. 77]. That job required no skills transferable to other work. She had a high school education, and was an "individual closely approaching advanced age" on her alleged disability onset date of October 22, 2013 and at the time the ALJ rendered his hearing decision on June 2, 2015. The ALJ found that the plaintiff could perform her past relevant work at Step 4 of the sequential evaluation process. Even if the process had gone to Step 5, and if she had been capable of the full range of light work, Rule 202.14 of the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2 [the "Grid"] would have directed a finding that she was not disabled. However, four months after the ALJ's hearing decision the plaintiff reached the age of 55 and became a person of "advanced age." At that point, with the same vocational characteristics, she would be disabled under Grid Rule 202.06.
IV. Evidence in the Record
Plaintiff's medical history is detailed in her brief as follows:
[Doc. 16, pgs. 2-9].
On April 27, 2015, the ALJ held the plaintiff's administrative hearing. After the plaintiff testified, the ALJ took the testimony of the VE, Ms. Donna Bardsley. After she identified the plaintiff's past relevant work, she was asked to assume a person with the plaintiff's vocational characteristics who could do light work with occasional posturals; no ropes, ladders, scaffolds; avoid concentrated exposure to hazards and fumes and other irritants. When asked if there would be jobs, the VE stated that this person could perform the plaintiff's past relevant work. She also identified various other jobs in the state and national economies which such a person could perform (Tr. 77-78). There is no dispute that these would constitute a significant number of jobs under the applicable regulations.
V. ALJ's Findings
On June 4, 2015, the ALJ issued his decision on the plaintiff's claim. He made the following findings:
1. He found that the plaintiff was not working, and had not worked since October 22, 2013, her alleged onset date (Tr. 50).
2. He found that she has severe physical impairments of fibromyalgia; degeneration of the cervical, thoracic, and lumbar spine; osteoporosis of the lumbar spine; status-post lumbar surgery; myalgias; and asthma. With respect to the plaintiff's claimed mental impairments, he noted that she was prescribed medication for this by her primary care doctors, and that she was described by their records "as oriented with intact insight and judgment." (Tr. 50). He then discussed the findings of the consultative examiner, Dr. Chad R. Sims, the clinical psychologist whose findings are set forth hereinabove. Based upon Dr. Sims finding no more than mild difficulties with memory and concentration, the ALJ found that plaintiff's "medically determinable mental impairments of Anxiety Disorder NOS, Depressive Disorder NOS, and Remote History of Cocaine Abuse/Dependence, considered singly and in combination, do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are therefore nonsevere." (Tr. 51).
The ALJ then described the four functional areas set out in the mental health listing of impairments found at 20 CFR, Part 404, Subpart P, Appendix 1, the "paragraph B criteria." (Tr. 51). In the first area, activities of daily living, he found she had a mild limitation. In that regard he noted she had told Dr. Sims she neglected self-care, had limited engagement in chores, and loss of interest in activities aside from spending time with her dogs. She reported crying spells on a weekly basis. On bad days she did nothing but sedentary activities, and on good days did mostly cooking, cleaning and talking to her friend on the phone (Tr. 51). In the second area of functioning, social functioning, he found a mild limitation. He pointed to coherent responses, appropriate behavior at medical appointments, and no history of personal problems with co-workers or supervisors (Tr. 51). With respect to the third area involving concentration, persistence or pace, he also found a mild limitation, based upon Dr. Sims' finding to that effect during his exam (Tr. 51). Finally, in the fourth area, he found no episodes of decompensation had occurred (Tr. 52). Therefore, relying upon 20 CFR §404.1521a(d)(1), he found that none of her mental impairments were severe. That regulation provides that if a claimant's degree of limitation is no more than mild in any of first three areas of function described above, "we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities...." Id.
The ALJ continued his discussion of the plaintiff's asserted mental impairments by further explaining the bases for his opinion. He stated that "[o]ther than prescription medication from her primary care source, the record reflects no actual professional mental health treatment for anxiety and depression." (Tr. 52). He noted that "[n]o treating source has indicated that the claimant has significant emotional problems." Id. He noted she had not required psychiatric hospitalization, and that while that she "may be depressed and anxious, the evidence shows that she is able to think, communicate, and act in her own interest." Id. He pointed out that Dr. Sims' personally observed the plaintiff and that his findings of no more than mild impairments were "assigned great evidentiary weight." Id. He then stated that the State Agency psychologists who examined plaintiff's records, including the report of Dr. Sims, and concluded that the plaintiff had moderate difficulties regarding activities of daily living and concentration, were "an overestimate of the claimant's mental limitations as they are clearly not supported by credible evidence," and were given little evidentiary weight. Id.
3. The ALJ found that the plaintiff had no impairment(s) which met or equaled the effects of any impairment in the listing of impairments (Tr. 53).
4. He found that the plaintiff had the residual functional capacity ["RFC"] "to perform light work ... except that she is able to occasionally perform postural activities not requiring climbing ladders, ropes, or scaffolds or concentrated exposure to hazards and other respiratory irritants." (Tr. 52). He reiterated that plaintiff had no non-exertional impairments, such as a mental impairment. He then stated that the plaintiff's description of the effects of her symptoms on her abilities to perform work activities were not entirely credible. He then discussed her physical medical history at great length (Tr. 53-55). In this regard, he found she did not have any impairment the effects of which would prevent her from performing activities within the context of the RFC finding (Tr. 55). He further explained his reasons, including radiographic studies, physical exams showing normal ranges of motion, and conservative treatment (Tr. 56). He stated the State Agency physicians supported this finding. He found that Dr. Wireman's restriction on stand/walking to up to four hours was entitled to little evidentiary weight because it was "an overestimate of the severity of the claimant's limitation based on his own objective findings and the one time evaluation of the claimant" to which he gave little weight (Tr. 56-57).
5. He then found the plaintiff could return to her past relevant work based upon Ms. Bardsley's testimony. Alternatively, he found the plaintiff could perform the jobs identified by Ms. Bardsley at the light level of exertion. Accordingly, he found that the plaintiff was not disabled (Tr. 57-58).
VI. Plaintiff's Assertions of Error and Analysis
Plaintiff first states that the ALJ erred in finding that the plaintiff could return to her past relevant work with respect to both her alleged mental and physical impairments. Her second assignment of error is that the ALJ improperly found that the plaintiff was not entirely credible.
With respect to the ALJ's finding that she did not have a severe mental impairment, plaintiff points to the fact that both State Agency psychologists who examined the plaintiff's medical records opined that she had severe impairments with respect to both her anxiety disorder and her affective disorder (Tr. 85 and 104). Both also found that plaintiff had moderate restrictions in activities of daily living and moderate difficulties in maintaining concentration, persistence or pace. (Tr. 86 and 109-110). Likewise, both psychologists relied upon the lengthy treatment history by LCSW Lisa P. Sherfey (Tr. 83 and 102). More importantly, both opined that Dr. Sims' mental assessment in August 2013 was "felt not restrictive enough for totality of evidence and given little weight ..." (Tr. 86 and 105). As stated above, the ALJ discounted their opinions because they "are clearly not supported by credible evidence." (Tr. 52).
The bar for a plaintiff to cross in proving that he or she has a severe impairment is quite low. The Sixth Circuit, from time immemorial, has held that "the step two severity regulation ... has been construed as a de minimis hurdle in the disability determination process ... Under the prevailing de minimis view, an impairment can be considered not severe only if it is a slight abnormality that minimally affects work ability regardless of age, education, and experience. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (citations omitted). The de minimis standard exists to allow "the threshold dismissal of claims obviously lacking medical merit." Id. "The purpose of the second step of the sequential analysis is to enable the Commissioner to screen out `totally groundless claims.'" Griffeth v. Commissioner of Social Security, 217 F. App'x 425, 428 (6th Cir. 2007)(quoting Farris v. Sec'y of HHS, 773 F.2d 85, 89 (6th Cir. 1985)). Having a severe impairment and being disabled are quite different concepts. Thus statements that a claimant's conservative treatment or daily activities do not suggest that the claimant could engage in at least some work activity which are of vital importance in determining the RFC have very little meaning in a Step Two analysis of whether an impairment is severe or non-severe.
In the present case, the ALJ has found that the plaintiff has not shown a severe mental impairment, primarily because "[o]ther than prescription medication from her primary care source, the record reflects no actual professional mental health treatment for anxiety/depression ...," and "no treating source has indicated that the claimant has significant emotional problems." (Tr. 52). The fact that a treating medical doctor of whatever specialty is prescribing medication for depression and anxiety would seem to the Court to be both "professional treatment," as well as an indication that the prescribing doctor feels that the plaintiff has emotional problems sufficiently significant to merit prescribing the medication. Also, the ALJ, and the Commissioner, are completely silent with respect to the treatment given to the plaintiff by Lisa Sherfey, the LCSW with whom the plaintiff had 36 visits between April 2010 and May 2013 (Tr. 303-344).
Ms. Sherfey is a Licensed Clinical Social Worker ["LCSW"]. As such, she is not an "acceptable medical source" under 20 CFR § 404.1513(a). That distinction is limited to physicians, licensed or certified psychologists, optometrists (with respect to measurement of visual acuity and visual fields only), podiatrists (in certain states), and speech pathologists (for establishing speech impediments only). However, paragraph (d) of this regulation provides that "other sources" may be used, including "medical sources not listed in paragraph (a)." In Social Security Ruling ["SSR"] 06-03p, 2006 WL 2329939, the Commissioner set forth policies regarding the consideration of the "other sources" referenced in the CFR section above. The SSR, in describing "other sources," included "licensed clinical social workers" in its definition of "medical sources who are not `acceptable medical sources.'" Id. at *2. The ruling then stated:
Id. at *3 (emphasis added).
The SSR went on to discuss the "explanation of consideration given to opinions from `other sources.'" "Since there is a requirement to consider all relevant evidence in an individual's case record, the case record should reflect the consideration of opinions from medical sources who are not `acceptable medical sources' ... who have seen the claimant in their professional capacity." Id. at *6. It went on to say that "the adjudicator generally should explain the weight given to opinions from these `other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an impact on the outcome of the case." Id.
After the implementation of this SSR, the Sixth Circuit decided the case of Cruse v. Commissioner of Soc. Sec., 502 F.3d 532 (6th Cir. 2007). In that case, the ALJ actually discussed the findings of plaintiff's nurse practitioner, and discounted them saying that the nurse was not a doctor. The Court stated that "following SSR 06-03p, the ALJ should have discussed the factors relating to his treatment of [the nurse practitioner's] assessment." Id. at 541.
Likewise, in Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011), the Sixth Circuit remanded the case, in part, because "the ALJ fail[ed] to mention Ms. Dailey, Cole's treating counselor, in the analysis of Cole's diagnosis and RFC and [gave] no reasons for not crediting her opinions." Id. at 939. The Court went on to say that the counselor "is an `other source,' ... who is entitled to consideration due to her expertise and long-term relationship with Cole." Id.
In this case, based on Cruse and Cole, supra, and the language of SSR 06-03p, the Court finds that the ALJ erred by not at least discussing the treatment notes from Ms. Sherfy. In fact, the Court is of the opinion that the hearing decision should have stated a basis for rejecting her opinion that the plaintiff suffers from major depression that was causing a lack of sleep, loss of energy and paranoia. However, even if an explanation for giving them little weight was not required, as some cases from other districts such as Southward v. Commissioner of Soc. Sec., 2012 WL 3887439 (E.D. Mich. 2012), have suggested, it is indisputable that the SSR and the Sixth Circuit cases discussed above require consideration of her treatment of the plaintiff. In the present case, with absolutely no mention of that treatment, the Court has no assurance that Ms. Sherfy's records were even considered. Also, as stated above, her records are especially vital to the issue of whether plaintiff has met the de minimis hurdle of showing a severe mental impairment. The State Agency psychologists, in no small part, based their opinion that she had moderate mental impairments in two of the four critical areas of functioning on the observations of Ms. Sherfy, causing them to both concluded that Dr. Sims' opinion of only mild difficulties was not restrictive enough, and that the plaintiff does in fact have a severe mental impairment.
Of course, the argument could be made that the ALJ rejected Ms. Sherfy vicariously by finding that the State Agency psychologists were "clearly not supported by credible evidence." An explanation of why her treatment notes, along with the fact her treating doctor prescribed medication for her depression, do not constitute "credible evidence" is necessary. In this case, this complete omission of the fact that Ms. Sherfy's treatment of plaintiff even existed prevents the Commissioner's finding in this regard from being substantially justified.
Given that the case must be remanded for clearer evaluation of these issues, the Court will defer discussion of the plaintiff's physical condition and her credibility. The plaintiff's Motion for Judgment on the Pleadings [Doc. 15] is GRANTED, and the defendant Commissioner's Motion for Summary Judgment [Doc. 17] is respectfully DENIED.