Coletta v Social Security, Commissioner of
Filing
14
MEMORANDUM OPINION AND ORDER Denying 11 Motion for Summary Judgment; Granting 13 Motion for Summary Judgment. Signed by Magistrate Judge Patricia T. Morris. (KCas)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL C.,
Case No. 1:23-12472
Plaintiff,
Patricia T. Morris
United States Magistrate Judge
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
MEMORANDUM OPINION AND ORDER ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 11, 13)
I.
CONCLUSION
For the reasons set forth below, Plaintiff Michael C.’s Motion for Summary
Judgment will be DENIED (ECF No. 9), Defendant the Commissioner of Social
Security’s Motion for Summary Judgment will be GRANTED (ECF No. 11), and
the final decision of the Administrative Law Judge (“ALJ”) will be AFFIRMED.
II.
ANALYSIS
A.
Introduction and Procedural History
Plaintiff filed applications for Disability Insurance Benefits and Supplemental
Security Income on November 12, 2021, alleging that he became disabled on
October 25, 2021. (ECF No. 10, PageID.395, 596?609). The Commissioner denied
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the applications initially in March 2022, and on reconsideration in July 2022. (Id. at
PageID.395, 453?92, 512?18). Plaintiff requested a hearing before an ALJ which
took place on November 10, 2022. (Id. at PageID.395, 409?52). The ALJ issued a
decision on December 28, 2022, finding that Plaintiff was not disabled. (Id. at
PageID.392?408). And the Appeals Council denied review on July 27, 2023. (Id.
at PageID.379?83).
Following the Appeals Council’s decision, Plaintiff sought judicial review on
September 29, 2023. (ECF No. 1). The parties consented to the Undersigned
“conducting any or all proceedings in this case, including entry of a final judgment
on all post-judgment matters.” (ECF No. 6). The parties have filed cross-motions
for summary judgment (ECF Nos. 11, 13) and Plaintiff did not file a timely response.
B.
Standard of Review
The Court has jurisdiction to review the Commissioner’s final administrative
decision pursuant to 42 U.S.C. § 405(g). The district court’s review is restricted
solely to determining whether the “Commissioner has failed to apply the correct
legal standard or has made findings of fact unsupported by substantial evidence in
the record.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014)
(internal quotation marks omitted). Substantial evidence is “more than a scintilla of
evidence but less than a preponderance.” Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007) (internal quotation marks omitted). “[T]he threshold for
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such evidentiary sufficiency is not high.” Biestek v. Berryhill, 587 U.S. 97, 103
(2019). “It means—and means only—such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (internal quotation marks and
citation omitted).
The Court must examine the administrative record as a whole, and may
consider any evidence in the record, regardless of whether it has been cited by the
ALJ. See Walker v. Sec’y of Health & Hum. Servs., 884 F.2d 241, 245 (6th Cir.
1989). The Court will not “try the case de novo, nor resolve conflicts in the evidence,
nor decide questions of credibility.” Cutlip v. Sec’y of Health & Hum. Servs., 25
F.3d 284, 286 (6th Cir. 1994). If the Commissioner’s decision is supported by
substantial evidence, “it must be affirmed even if the reviewing court would decide
the matter differently and even if substantial evidence also supports the opposite
conclusion.” Id. at 286 (internal citations omitted).
C.
Framework for Disability Determinations
Disability benefits are available only to those with a “disability.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means the 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 [twelve] months.
42 U.S.C. § 1382c(a)(3)(A). The Commissioner’s regulations provide that disability
is to be determined through the application of a five-step sequential analysis:
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(i) At the first step, we consider your work activity, if any. If you are
doing substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determinable
physical or mental impairment that meets the duration requirement . . .
or a combination of impairments that is severe and meets the duration
requirement, we will find that you are not disabled.
(iii) At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one
of our listings in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled.
(iv) At the fourth step, we consider our assessment of your residual
functional capacity and your past relevant work. If you can still do your
past relevant work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your
residual functional capacity and your age, education, and work
experience to see if you can make an adjustment to other work. If you
can make an adjustment to other work, we will find that you are not
disabled. If you cannot make an adjustment to other work, we will find
that you are disabled.
20 C.F.R. § 404.1520; see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534
(6th Cir. 2001).
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by [his or] her impairments and the fact that [he
or] she is precluded from performing [his or] her past relevant work.” Jones v.
Comm’r of Soc. Sec., 3336 F.3d 469, 474 (6th Cir. 2003). The claimant must provide
evidence establishing the residual functional capacity, which “is the most [the
claimant] can still do despite [his or her] limitations,” and is measured using “all the
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relevant evidence in [the] case record.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
The burden transfers to the Commissioner if the analysis reaches the fifth step
without a finding that the claimant is not disabled. Combs v. Comm’r of Soc. Sec.,
459 F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required
to show that “other jobs in significant numbers exist in the national economy that
[the claimant] could perform given [his or] her RFC and considering relevant
vocational factors.” Rogers, 486 F.3d at 214 (citing 20 C.F.R. §§ 416.920(a)(4)(v),
(g)).
D.
ALJ Findings
Following the five-step sequential analysis, the ALJ determined that Plaintiff
was not disabled. (ECF No. 10, PageID.392?408). At Step One, the ALJ found
Plaintiff met the insured status requirements through June 30, 2023, and that Plaintiff
had not engaged in substantial gainful activity (“SGA”) since October 25, 2021, the
alleged onset date. (Id. at PageID.397). At Step Two, the ALJ found the following
impairments severe: bipolar I disorder, generalized anxiety disorder, cannabis use
disorder, and alcohol use disorder. (Id.). At Step Three, she found that none of the
impairments, either independently or in combination, met or medically equaled in
severity or duration the criteria of any listing. (Id. at PageID.398).
Next, the ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels but with the following
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non-exertional limitations:
• Simple, routine work that requires only simple
decisions and no complex decisions;
• Low stress work, which is work that has less than
occasional changes in the work routine and setting, and
does not require production-rate pace/hourly quotas;
and
• Occasional interaction with supervisors, co-workers,
and the general public.
(Id. at PageID.399).
At Step Four, the ALJ found that Plaintiff had no past relevant work
experience. (Id. at PageID.403). Finally, at Step Five, the ALJ determined that
Plaintiff could perform a significant number of jobs in the economy, which included
work as a hand packager, a laundry worker, and an assembler. (Id. at PageID.403?
04). Accordingly, the ALJ concluded that Plaintiff was not disabled, as defined in
the Social Security Act, at any time from October 25, 2021, through the date of the
decision. (Id. at PageID.404).
E.
Administrative Record
This case involves a single issue: whether the ALJ committed legal error
requiring reversal by failing to evaluate the supportability and consistency of the
medical opinions from the providers who evaluated Plaintiff while he received
outpatient mental health treatment. Although the entire record has been reviewed
by the Undersigned, references to the record will be limited to this single issue as
part of the analysis below.
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F.
Governing Law
The ALJ must “consider all evidence” in the record when making a disability
decision. 42 U.S.C. § 423(d)(5)(B) (2012). The newly promulgated regulations,
applicable to applications for disability benefits filed on or after the effective date of
March 27, 2017, such as Plaintiff’s application here, distinguish between acceptable
medical sources, medical sources, and nonmedical sources.
An acceptable medical source means a medical source who is a:
(1) Licensed physician (medical or osteopathic doctor);
(2) Licensed Psychologist, which includes:
(i)
A licensed or certified psychologist at the independent
practice level; or
(ii)
A licensed or certified school psychologist, or other
licensed or certified individual with another title who
performs the same function as a school psychologist in a
school setting, for impairments of intellectual disability,
learning disabilities, and borderline intellectual
functioning only;
(3) Licensed optometrist for impairments of visual disorders, or
measurement of visual acuity and visual fields only, depending
on the scope of practice in the State in which the optometrist
practices;
(4) Licensed podiatrist for impairments of the foot, or foot and ankle
only, depending on whether the State in which the podiatrist
practices permits the practice of podiatry on the foot only, or on
the foot and ankle;
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(5) Qualified speech-language pathologist for speech or language
impairments only. For this source, qualified means that the
speech-language pathologist must be licensed by the State
professional licensing agency, or be fully certified by the State
education agency in the State in which he or she practices, or
hold a Certificate of Clinical Competence in Speech-Language
pathology from the American Speech-Language-Hearing
Association;
(6) Licensed audiologist for impairments of hearing loss, auditory
processing disorders, and balance disorders within the licensed
scope of practice only [];
(7) Licensed Advanced Practice Registered Nurse, or other licensed
advanced practice nurse with another title, for impairments
within his or her licensed scope of practice []; or
(8) Licensed Physician Assistant for impairments within his or her
licensed scope of practice [].
20 C.F.R. § 404.1502(a) (2021). A medical source is
an individual who is licensed as a healthcare worker by a State and
working within the scope of practice permitted under State or Federal
law, or an individual who is certified by a State as a speech-language
pathologist or a school psychologist and acting within the scope of
practice permitted under State or Federal law.
Id. § 404.1502(d). In contrast, a nonmedical source is “a source of evidence who is
not a medical source.” Id. § 404.1502(e). “This includes, but is not limited to: (1)
[the claimant]; (2) Educational personnel (for example, school teachers, counselors,
early intervention team members, developmental center workers, and daycare center
workers); (3) Public and private social welfare agency personnel; and (4) Family
members, caregivers, friends, neighbors, employers, and clergy.” Id.
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The Social Security Administration (“SSA”) “will not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s)
or prior administrative medical findings, including those from [the claimant’s]
medical sources.” Id. § 404.1520c(a). “The most important factors [the SSA]
consider[s] when [it] evaluate[s] the persuasiveness of medical opinions and prior
administrative medical findings are supportability (paragraph (c)(1) of this section)
and consistency (paragraph (c)(2) of this section).” Id. The SSA will consider
several factors when it contemplates “the medical opinion(s) and prior
administrative medical findings” in a case. Id.
The first factor is “supportability.” For this factor, “[t]he more relevant the
objective medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) or prior administrative medical
finding(s), the more persuasive the medical opinion(s) or prior administrative
medical finding(s) will be[.]” Id. § 404.1520c(c)(1).
The SSA will also consider the “consistency” of the opinion. In essence,
“[t]he more consistent a medical opinion(s) or prior administrative medical
finding(s) is with the evidence from other medical sources and nonmedical sources
in the claim, the more persuasive the medical opinion(s) or prior administrative
medical finding(s) will be[.]” Id. § 404.1520c(c)(2).
In addition, the SSA will consider the source’s “[r]elationship with [the]
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claimant[.]” Id. § 404.1520c(c)(3). This factor will include the analysis of:
Id.
(i)
Length of the treatment relationship. The length of time a
medical source has treated [the claimant] may help demonstrate
whether the medical source has a longitudinal understanding of
[the claimant’s] impairment(s);
(ii)
Frequency of examinations. The frequency of [the claimant’s]
visits with the medical source may help demonstrate whether the
medical source has a longitudinal understanding of [the
claimant’s] impairment(s);
(iii)
Purpose of the treatment relationship. The purpose for treatment
[the claimant] received from the medical source may help
demonstrate the level of knowledge the medical source has of
[the claimant’s] impairment(s);
(iv)
Extent of the treatment relationship. The kinds and extent of
examinations and testing the medical source has performed or
ordered from specialists or independent laboratories may help
demonstrate the level of knowledge the medical source has of
[the claimant’s] impairment(s);
(v)
Examining relationship. A medical source may have a better
understanding of [the claimant’s] impairment(s) if he or she
examines [the claimant] than if the medical source only reviews
evidence in [the claimant’s] folder[.]
The fourth factor of the SSA’s analysis is “specialization.” In making this
determination, the SSA will consider
[t]he medical opinion or prior administrative medical finding of a
medical source who has received advanced education and training to
become a specialist may be more persuasive about medical issues
related to his or her area of specialty than the medical opinion or prior
administrative medical finding of a medical source who is not a
specialist in the relevant area of specialty.
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Id. § 404.1520c(c)(4).
Finally, the SSA will consider “other factors.” These may include any other
information that “tend[s] to support or contradict a medical opinion or prior
administrative medical finding.” Id. § 404.1520c(c)(5). Other factors include
“evidence showing a medical source has familiarity with the other evidence in the
claim or an understanding of our disability program’s policies and evidentiary
requirements.” Id. Further, when the SSA considers “a medical source’s familiarity
with the other evidence in a claim, [it] will also consider whether new evidence [it]
receive[s] after the medical evidence source made his or her medical opinion or prior
administrative medical finding makes the medical opinion or prior administrative
medical finding more or less persuasive.” Id.
As to the duty to articulate how persuasive the medical opinions and prior
administrative medical findings are considered, the new regulations provide
“articulation requirements.” The ALJ will consider “source-level articulation.”
Pursuant to this requirement,
[b]ecause many claims have voluminous case records containing many
types of evidence from different sources, it is not administratively
feasible for [the ALJ] to articulate in each determination or decision
how [he or she] considered all of the factors for all of the medical
opinions and prior administrative medical findings in [each] case
record.
Id. § 404.1520c(b)(1).
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Instead, when a medical source provides multiple medical opinion(s) or
prior administrative finding(s), [the ALJ] will articulate how [he or she]
considered the medical opinions or prior administrative findings from
that medical source together in a single analysis using the factors listed
in paragraphs (c)(1) through (c)(5) of this section, as appropriate.
Id. The regulation reiterates that the ALJ is “not required to articulate how [he or
she] considered each medical opinion or prior administrative finding from one
medical source individually.” Id.
The regulations stress that the “factors of supportability (paragraph (c)(1) of
this section) and consistency (paragraph (c)(2) of this section) are the most important
factors [the SSA] consider[s] when [it] determine[s] how persuasive [it] find[s] a
medical source’s medical opinions or prior administrative medical findings to be.”
Id. § 404.1520c(b)(2). As such, the SSA
will explain how [it] considered the supportability and consistency
factors for a medical source’s medical opinions or prior administrative
medical findings in [the claimant’s] determination or decision. [The
SSA] may, but [is] not required to, explain how [it] considered the
factors in paragraphs (c)(3) through (c)(5) of this section, as
appropriate, when [it] articulate[s] how [it] consider[s] medical
opinions and prior administrative medical findings in [the claimant’s]
case record.
Id.
When medical opinions or prior administrative findings are “equally
persuasive,” “well-supported,” and “consistent with the record” “about the same
issue,” “but are not exactly the same, [the ALJ] will articulate how [he or she]
considered the other most persuasive factors . . . for those medical opinions or prior
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administrative medical findings in [the claimant’s] determination or decision.” Id.
§ 404.1520c(b)(3). The regulations clarify that the SSA is “not required to articulate
how [it] considered evidence from non-medical sources using the requirements of
paragraphs (a) through (c) of this section.” Id. § 404.1520c(d).
In addition, the regulations expressly state that the SSA will not consider
“evidence that is inherently neither valuable nor persuasive” and “will not provide
any analysis about how [it] considered such evidence in [its] determination or
decision, even under § 404.1520c.” Id. § 404.1520b(c). The regulations categorize
evidence that is inherently neither valuable nor persuasive as: “[d]ecisions by other
governmental and nongovernmental entities;” “[d]isability examiner findings,”
meaning “[f]indings made by a State agency disability examiner made at a previous
level of adjudication about a medical issue, vocational issue, or the ultimate issue
about whether [the claimant is] disabled;” and “[s]tatements on issues reserved to
the Commissioner[,]” including
(i)
Statements that [the claimant] [is] or [is] not disabled, blind, able
to work, or able to perform regular or continuing work;
(ii)
Statements about whether or not [the claimant’s] impairment(s)
meets or medically equals any listing in the Listing of
Impairments[];
(iii)
Statements about what [the claimant’s] residual functional
capacity is using [the SSA’s] programmatic terms about the
functional exertional levels [] instead of descriptions about [the
claimant’s] functional abilities and limitations[];
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(iv)
Statements about whether or not [the claimant’s] residual
functional capacity prevents [the claimant] from doing past
relevant work[];
(v)
Statements that [the claimant] [does] or [does] not meet the
requirements of a medical-vocational rule[]; and
(vi)
Statements about whether or not [the claimant’s] disability
continues or ends when [the SSA] conduct[s] a continuing
disability review[.]
Id. § 404.1520b(c).
The regulations also provide that
[b]ecause a decision by any other governmental and nongovernmental
entity about whether [a claimant is] disabled, blind, employable, or
entitled to any benefits is based on its rules, it is not binding on [the
SSA] and is not [its] decision about whether [the claimant is] disabled
or blind under [SSA] rules.
Id. § 404.1504.
Therefore, the SSA “will not provide any analysis in its
determination or decision about a decision made by any other governmental or
nongovernmental entity about whether [the claimant is] disabled, blind, employable,
or entitled to benefits.” Id. The SSA will, however, “consider all of the supporting
evidence underlying the other governmental or nongovernmental entity’s decision
that [it] receive[s] as evidence in [a] claim[.]” Id.
The regulations clarify that “[o]bjective medical evidence means signs,
laboratory findings, or both.” Id. § 404.1502(f). Signs are defined as “one or more
anatomical, physiological, or psychological abnormalities that can be observed,
apart from your statements (symptoms).” Id. Further, “[s]igns must be shown by
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medically acceptable clinical diagnostic techniques. Psychiatric signs are medically
demonstrable phenomena that indicate specific psychological abnormalities, e.g.,
abnormalities of behavior, mood, thought, memory, orientation, development or
perception, and must also be shown by observable facts that can be medically
described and evaluated.” Id. § 404.1502(g). Laboratory findings “means one or
more anatomical, physiological, or psychological phenomena that can be shown by
the use of medically acceptable laboratory diagnostic techniques[,]” and “diagnostic
techniques include chemical tests (such as blood tests), electrophysiological studies
(such as electrocardiograms and electroencephalograms), medical imaging (such as
x-rays), and psychological tests.” Id. § 404.1502(c).
The most recent amendments to the regulations also tweaked the manner in
which the SSA evaluates symptoms, including pain.
In considering whether [the claimant is] disabled, [the SSA] will
consider all [the claimant’s] symptoms, including pain, and the extent
to which [the claimant’s] symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence.
[The SSA] will consider all [the claimant’s] statements about [his or
her] symptoms, such as pain, and any description [the claimant’s]
medical sources or nonmedical sources may provide about how the
symptoms affect [the claimant’s] activities of daily living and [his or
her] ability to work[.]
Id. § 404.1529(a). But the SSA clarified that
statements about [the claimant’s] pain or other symptoms will not alone
establish that [the claimant is] disabled. There must be objective
medical evidence from an acceptable medical source that shows [the
claimant has] a medical impairment(s) which could reasonably be
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expected to produce the pain or other symptoms alleged and that, when
considered with all of the other evidence (including statements about
the intensity and persistence about [the claimant’s] pain or other
symptoms which may reasonably be accepted as consistent with the
medical signs and laboratory findings), would lead to a conclusion that
[the claimant is] disabled.
Id. § 404.1529(a).
Further, “[i]n evaluating the intensity and persistence of [the claimant’s]
symptoms, including pain, [the SSA] will consider all of the available evidence,
including [the claimant’s] medical history, the medical signs and laboratory findings,
and statements about how [the claimant’s] symptoms affect [him or her].” Id. §
404.1529(a). The SSA clarified that it will “then determine the extent to which [the
claimant’s] alleged functional limitations and restrictions due to pain or other
symptoms can reasonably be accepted as consistent with the medical signs and
laboratory findings and other evidence to decide how [the claimant’s] symptoms
affect [his or her] ability to work.” Id.
Finally, the SSA noted that “[b]ecause symptoms sometimes suggest a greater
severity of impairment than can be shown by objective medical evidence alone, [it]
will carefully consider any other information [the claimant] may submit about [his
or her] symptoms.” Id. § 404.1529(c)(3). This other information may include “[t]he
information that [the claimant’s] medical sources or nonmedical sources provide
about [the claimant’s] pain or other symptoms,” such as “what may precipitate or
aggravate [the claimant’s] symptoms, what medications, treatments or other
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methods [the claimant uses] to alleviate them, and how the symptoms may affect
[the claimant’s] pattern of daily living,” which “is also an important indicator of the
intensity and persistence of the claimant’s symptoms.” Id.
Because symptoms, such as pain, are subjective and difficult to
quantify, any symptom-related functional limitations and restrictions
that [the claimant’s] medical sources or nonmedical sources report,
which can reasonably be accepted as consistent with the objective
medical evidence and other evidence, will be taken into account . . . .
[The SSA] will consider all of the evidence presented, including
information about [the claimant’s] prior work record, [the Claimant’s]
statements about [his or her] symptoms, evidence submitted by [the
claimant’s] medical sources, and observations by [the SSA’s]
employees and other persons[.]
Id. The regulations establish that “[f]actors relevant to [a claimant’s] symptoms,
such as pain, which [it] will consider include []:
(i)
[D]aily activities;
(ii)
The location, duration, frequency, and intensity of . . . pain;
(iii)
Precipitating and aggravating factors;
(iv)
The type, dosage, effectiveness, and side effects of any
medication . . . taken to alleviate . . . pain or other symptoms;
(v)
Treatment, other than medication, . . . received for relief of . . .
pain;
(vi)
Any measures . . . used to relieve . . . pain.
Id.
The new regulations also impose a duty on the claimant: “[i]n order to get
benefits, [the claimant] must follow treatment prescribed by [his or her] medical
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source(s) if this treatment is expected to restore [his or her] ability to work.” Id. §
404.1530(a). Stated differently, “[i]f [the claimant does] not follow the prescribed
treatment without a good reason, [the SSA] will not find [the claimant] disabled or,
if [the claimant is] already receiving benefits, [the SSA] will stop paying . . .
benefits.” Id. § 404.1530(b). Acceptable (or “good”) reasons for failure to follow
prescribed treatment include:
(1)
The specific medical treatment is contrary to the
established teaching and tenets of [the claimant’s]
religion;
(2)
The prescribed treatment would be cataract surgery for
one eye, when there is an impairment of the other eye
resulting in a severe loss of vision and is not subject to
improvement through treatment;
(3)
Surgery was previously performed with unsuccessful
results and the same surgery is again being recommended
for the same impairment;
(4)
The treatment because of its magnitude (e.g. open heart
surgery), unusual nature (e.g., organ transplant), or other
reason is very risky for [the claimant]; or
(5)
The treatment involves amputation of an extremity, or
major part of an extremity.
Id. § 404.1530(c).
G.
Argument and Analysis
As stated above, this case involves a single issue: whether the ALJ committed
legal error requiring reversal by failing to evaluate the supportability and consistency
18
of the medical opinions from the providers who evaluated Plaintiff while he received
outpatient mental health treatment. While Plaintiff’s brief could be clearer on this
point, it appears his primary contention is that the ALJ should have considered his
providers’ treatment notes containing global assessment of functioning (“GAF”)
scores as medical opinions and then undertaken the required analysis for such
opinions.
Conversely, the Commissioner argues that “ALJs are not required to explicitly
discuss GAF scores in the[ir] decision[s].” (ECF No. 13, PageID.1408). In support
of this argument, the Commissioner cites numerous cases where courts criticized the
value of GAF scores including Howard v. Comm’r of Soc. Sec., 276 F.3d 235 (6th
Cir. 2002). (Id.).
To contextualize the parties’ arguments, it is necessary to begin with a
discussion of how consideration of GAF scores has changed since 2013.
On July 22, 2013, the SSA issued Administrative Message 13066 (AM13066), which “provided instructions to adjudicators on the use of the GAF, noting
that it is not a medical finding but is non-standardized opinion evidence relating only
to a specific point in time that ‘needs supporting evidence to be given much weight,’
and limiting its utility in determining disability.” 3 Soc. Sec. Disab. Claims Prac. &
Proc. § 28:12 (2nd ed. 2024); see also Cunningham v. Comm’r of Soc. Sec., No.
3:19-CV-00314-SKL, 2020 WL 3229289, at *5 (E.D. Tenn. June 15, 2020)
19
(explaining that AM-13066 has “since been revised twice, though the parties do not
argue the newer versions differ in any material way from the original”). AM-13066
“note[d] several problems with using GAF scores to evaluate disability, such as the
fact that the GAF scores are not standardized, they are not designed to predict the
outcome of treatment, and the GAF scores are very general and therefore need
sufficient supporting detail to have any significant meaning.” Yee v. Comm’r of Soc.
Sec., No. 17-CV-10328, 2018 WL 2181466, at *6 (E.D. Mich. Jan. 31, 2018), report
and recommendation adopted, 2018 WL 1250478 (E.D. Mich. Mar. 12, 2018).
“Despite these flaws, AM-13066 provide[d] that a GAF score [wa]s a medical
opinion under the Regulations and that it should be considered by the ALJ in
conjunction with all of the other relevant record evidence when assessing disability
claims involving mental disorders.” Id. (emphasis added); see also Stowers v. Saul,
No. 3:19-CV-443-HBG, 2021 WL 784137, at *4 n.2 (E.D. Tenn. Mar. 1, 2021)
(“One difference the administrative message established is that GAF scores assigned
by ‘acceptable medical sources’ are now to be considered ‘medical opinions.’ ”
(citation omitted)).
Other district courts in this Circuit then grappled with the proper application
of AM-13066 given that it “appear[ed] to conflict with Sixth Circuit case law that
ALJs are not required to consider GAF scores.” Beckett v. Comm’r of Soc. Sec., No.
1:17-CV-303, 2019 WL 183830, at *4 (E.D. Tenn. Jan. 14, 2019).
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The
Commissioner cites one such case in support of the argument that the ALJ was not
required to explicitly consider Plaintiff’s GAF scores. (ECF No. 13, PageID.1408).
In that case, the Sixth Circuit stated that “the ALJ’s failure to reference the GAF
score in the RFC, standing alone, does not make the RFC inaccurate.” Howard, 276
F.3d at 241. However, as the Beckett court explained, “AM-13066 is a new policy
that is contrary to this Circuit’s prior policy,” and thus found that under the new
policy (AM-13066), “the ALJ was required to discuss the weight given to Dr.
Ofenloch’s GAF rating, given that Dr. Ofenloch was the claimant’s treating
physician.” 2019 WL 183830, at *4.
However, in the years since the issuance of AM-13066, the first two revisions
to it, and the first cases applying it, there have been major changes to the regulations
concerning evaluation of medical opinions. In light of these changes, the SSA
revised AM-13066 again in 2017. It now provides “that ‘for claims filed on or after
March 27, 2017, [the SSA] consider[s] a GAF score’ not as [a] medical opinion[]
but rather as ‘other medical evidence.’ ” Tiffany T. v. Comm’r of Soc. Sec., No. 3:22CV-00626-MPS, 2023 WL 10949091, at *11 (D. Conn. Sept. 1, 2023) (citation
omitted), report and recommendation adopted, 2024 WL 1230256 (D. Conn. Mar.
22, 2024).
Accordingly, “ALJs need not evaluate the GAF scores under the
persuasiveness factors as required of medical opinions.” Coats v. Kijakazi, No. 8:21CV-01762-AEP, 2023 WL 2706857, at *12 (M.D. Fla. Mar. 30, 2023).
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Here, Plaintiff appears to argue that the ALJ should have evaluated his
providers’ treatment notes, and the GAF scores contained within them, as medical
opinions. While this argument may have prevailed under earlier versions of AM13066, it does not under the current version. Plaintiff applied for benefits after
March 27, 2017, meaning that the ALJ was required to consider the treatment notes,
including the GAF scores that they contain, as other evidence rather than as medical
opinions. “As such, [the treatment notes] may be used to demonstrate consistency
(or lack thereof) with other opinion evidence, but they are not themselves medical
opinions.” Nichols v. Comm’r of Soc. Sec., No. 1:23-CV-02063-CEF, 2024 WL
3387289, at *12 (N.D. Ohio June 21, 2024).
The ALJ provided the following overview of Plaintiff’s medical history:
On [October 25, 2021,] the alleged onset date, [Plaintiff] presented to
the hospital after developing auditory hallucinations, paranoia, and
decreased sleep. Throughout a five-day admission, he cooperated with
all treatment, including group therapy. By discharge, he had a normal
clinical presentation and reported improvement in his symptoms.
Over the following month, he returned to the hospital on at least four
more occasions, each time reporting anxiety, suicidal thoughts,
decreased sleep, anger, and hallucinations. Clinically, he presented as
anxious, hyperactive, and depressed. His symptoms abated after
medication administration, but he failed to achieve long-term relief.
Given the frequent recurrence of his symptoms, doctors in the
emergency room ended up recommending inpatient psychiatric
treatment.
To that end, from November 11 through November 23, 2021, [Plaintiff]
completed an inpatient admission at Havenwyck. On admission,
[Plaintiff] related racing thoughts, paranoia, marked mood changes,
22
hallucinations, and increased agitation and threatening behavior toward
his family. Relatedly, he exhibited bland affect, labile mood, pressured
speech, paranoid behavior, and flight of ideas with grandiosity. Over
the course of this hospitalization, doctors tried several medication
combinations in an effort to achieve improvement and stability. They
finally found success with Invega injections and Seroquel. Upon
discharge, [Plaintiff’s] symptoms had significantly improved and he
seemed much more stable. Doctors recommended that he establish
outpatient treatment at New Oakland, where he could receive
monitoring of his medication regimen as well as psychotherapy.
(ECF No. 10, PageID.400 (internal record citations omitted) (citing ECF No. 10,
PageID.722?856, 1041?1330)). Plaintiff commenced the recommended outpatient
treatment at New Oakland, and the administrative record includes treatment notes
from his New Oakland providers dated through September 1, 2022.
(Id. at
PageID.857?1030, 1339?66). The administrative record does not, however, contain
any medical opinions from his New Oakland providers.
As previously stated, Plaintiff only raises one issue on appeal: whether the
ALJ “committed reversible legal error by failing to evaluate the supportability and
consistency of the medical opinions of his treating provider at New Oakland Family
Services.” (ECF No. 11, PageID.1379). The two cases that he discusses at length,
Devin W. v. Comm’r of Soc. Sec., No. 2:23-CV-962, 2024 WL 177288 (S.D. Ohio
Jan. 17, 2024), report and recommendation adopted, 2024 WL 691388 (S.D. Ohio
Feb. 20, 2024) and Heredia v. Kijakazi, No. 22-16653, 2023 WL 8449242 (9th Cir.
Dec. 6, 2023), primarily discuss flaws with the ALJ’s evaluation of opinion evidence
from the plaintiff’s treating providers. Again, the administrative record for this case
23
contains no opinion evidence from Plaintiff’s treating providers, and the ALJ cannot
be said to have improperly evaluated evidence that does not exist.
To the extent that Plaintiff tangentially references other issues in his motion,
the Undersigned concludes that such references are insufficient to actually raise the
issues. See, e.g., McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to
mention a possible argument in the most skeletal way, leaving the court to . . . put
flesh on its bones.” (internal citations omitted)). Thus, Plaintiff’s brief mentions of
possible issues, including the ALJ’s duty to develop the record and the accuracy of
the RFC, are deemed waived.
III.
ORDER
For these reasons, Plaintiff’s motion (ECF No. 9) is DENIED, the
Commissioner’s motion (ECF No. 11) is GRANTED, and the ALJ’s decision is
AFFIRMED.
Date: January 28, 2025
S/patricia t. morris
Patricia T. Morris
United States Magistrate Judge
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