Schalk v. Social Security, Commissioner of
Filing
25
OPINION AND ORDER adopting 22 Report and Recommendation, graning in part 15 Motion for summary judgment, denying 18 Motion for summary judgment, and reversing and remanding the decision of the Commissioner for furhter proceedings. Signed by District Judge David M. Lawson. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARC E. SCHALK,
Plaintiff,
v.
Case Number 15-12133
Honorable David M. Lawson
Magistrate Judge Mona K. Majzoub
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION, GRANTING IN PART PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT, DENYING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, AND REVERSING AND REMANDING THE
DECISION OF THE COMMISSIONER FOR FURTHER PROCEEDINGS
The plaintiff filed the present action on June 11, 2015 seeking review of the Commissioner’s
decision denying the plaintiff’s claims for a period of disability under Titles II and XVI of the Social
Security Act for disability insurance benefits and supplemental security income, respectively. The
plaintiff filed this action after previously seeking judicial review of an unfavorable decision by the
Commissioner, and following a remand by this Court for further consideration. The judgment in the
previous case was entered by another judge of this district, and, therefore, the present action should
have been identified as a companion case and reassigned to the original judge. See E.D. Mich. LR
83.11(b)(7)(A)(iii). However, the original judge refused to accept the transfer.
The present case was referred to United States Magistrate Judge Mona K. Majzoub, the
assigned magistrate judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3).
Thereafter, the plaintiff filed a motion for summary judgement to reverse the decision of the
Commissioner and remand the case for an award of benefits. The defendant filed a motion for
summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge
Majzoub filed a report on August 9, 2016 recommending that the plaintiff’s motion for summary
judgment be granted in part, the defendant’s motion for summary judgment be denied, the decision
of the Commissioner be reversed, and the matter be remanded for further proceedings. The
defendant filed timely objections to the recommendation and the plaintiff filed a response to the
defendant’s objections. This matter is now before the Court.
The filing of timely objections to a report and recommendation requires the court to “make
a de novo determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order
to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the
parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
-2-
The Court has reviewed the file, the report and recommendation, the defendant’s objections,
and the plaintiff’s response, and has made a de novo review of the administrative record in light of
the parties’ submissions.
The plaintiff, who is now 43 years old, filed his protective applications for disability
insurance benefits and supplemental security income on May 22, 2007, when he was 34. The
plaintiff completed the twelfth grade, and previously worked as a cook, an auto parts inspector, a
retail groundskeeper, a hospital housekeeper, a security guard, and a bus driver. In the original
applications that are the subject of the present appeal, the plaintiff alleged a disability onset date of
August 1, 2006. He later amended his applications to allege an onset date of January 9, 2007. The
plaintiff has been diagnosed with affective disorder and anxiety disorder. He testified at the second
administrative hearing that he suffers from panic attacks that occur two to three times per week. The
panic attacks last approximately 15 minutes, and they interfere with his driving. They also are
provoked when he is in the presence of even a few people.
The plaintiff’s applications for disability benefits and supplemental security income were
denied initially on August 1, 2007. The plaintiff timely filed a request for an administrative hearing,
and on August 12, 2009, the plaintiff appeared before Administrative Law Judge (ALJ) Peter N.
Dowd. On December 8, 2009, ALJ Dowd issued a written decision in which he found that the
plaintiff was not disabled. On September 2, 2010, the Appeals Council denied the plaintiff’s request
for review of the ALJ’s decision. The plaintiff filed his complaint seeking judicial review on
September 30, 2010. On September 22, 2011, another judge in this district granted the plaintiff’s
motion for summary judgment and remanded the case to the ALJ to comply with the procedural
requirements of the treating source rule. On September 10, 2013, the plaintiff appeared before ALJ
-3-
Kathleen H. Eiler. On December 6, 2013, ALJ Eiler issued a written decision in which she found
that the plaintiff was not entitled to benefits because he was capable of performing a limited range
of work at all exertional levels that exists in significant numbers in the national economy. The
Appeals Council denied the plaintiff’s request for review of the ALJ’s decision on April 13, 2015,
and thereafter the plaintiff timely filed his second complaint seeking judicial review.
ALJ Eiler reached her conclusion that the plaintiff was not disabled by applying the five-step
sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520, 416.920. She found that
the plaintiff had not engaged in substantial gainful activity since January 9, 2007, even though he
did perform some work thereafter (step one); the plaintiff suffered from affective disorder and
anxiety disorder, impairments which were “severe” within the meaning of the Social Security Act
(step two); none of those impairments alone or in combination met or equaled a listing in the
regulations (step three); and the plaintiff could not perform his previous work, which the ALJ found
required light to medium exertion, and was unskilled and semi-skilled (step four).
In applying the fourth and fifth steps, the ALJ concluded that the plaintiff had the residual
functional capacity to perform a range of work at all exertional levels reduced by the following nonexertional limitations: the claimant can perform only simple, routine, repetitive tasks with minimal
changes in a routine work setting and no production rate pace work. The claimant can occasionally
interact with supervisors, but should have no more than minimal superficial interaction with
coworkers, and no interaction with the general public.
A vocational expert (VE) testified that the plaintiff would be able to perform the
requirements of representative occupations in the regional and national economies such as kitchen
helper (274,698 jobs nationally), housekeeping cleaner (131,353 jobs nationally), and hand packager
-4-
(57,481 jobs nationally). Based on those findings, and considering the plaintiff’s age, education,
work experience, and residual functional capacity, the ALJ concluded that the plaintiff was not
disabled within the meaning of the Social Security Act. However, the VE also testified that if the
claimant was off task fifteen percent of each day, or had one day each week of an unscheduled
absence, all work would be precluded.
The magistrate judge reported that the ALJ failed to address properly an opinion by one of
the plaintiff’s treating psychiatrists, and therefore a remand was required to remedy that fault. The
defendant insists that the opinion does not amount to a “medical opinion” within the meaning of 20
C.F.R. § 404.1527(a)(2), but rather is an opinion on an item reserved to the Commissioner per 20
C.F.R. § 404.1527(d)(1).
The evidence that is the focus of the dispute is a form submitted by the Michigan Family
Independence Agency to Dr. Munawar Ahmad, the plaintiff’s treating psychiatrist, which Dr.
Ahmad completed on August 27, 2007. The purpose of the form, according to its instructions, was
“to assist the FIA in determining the extent of this client’s disability as it relates to employability.”
Tr. 281. Responding to stated questions, Dr. Ahmad wrote that Mr. Schalk was:
“34 years old male[,] casual dress and grooming. He is seen for meds. Review every
3 months. He has 12th grade education. History of sporadic employment. Not able
to keep job because of job stress and emotional issues.
Over ten years history of panic attacks and anxiety. Has been receiving mental
health services here since 2003. Received psych. meds through family doctor earlier.
Chronic problem with severe anxiety/depression/panic attacks and because of that
he has not been able to keep a job.
Presently on Lexipro 20 mg daily and Xanax 0.5 mg TID. I see him for medication
review every 3 months.
-5-
Currently reports nervousness, high anxiety, fatigue, chronic depression. Reports
poor sleep. No wt. loss. No history of psychosis. Still has panic attacks 1-2 per
week.
Reports some impairment of memory.
Patient usually does not go out a lot. He is able to take care of his basic needs.
However, he has not been able to work for past years or so.
Tr. 281-82. Dr. Ahmed diagnosed Mr. Schalk with (1) panic disorder with agoraphobia; (2) anxiety
disorder; and (3) depressive disorder, and assessed his global assessment of functioning (GAF) at
40. Tr. 282.
The defendant objects to the magistrate judge’ s finding that the August 27, 2007 psychiatric
report provided by Dr. Munawar Ahmad, M.D. is entitled to controlling weight. The defendant
points out correctly that the magistrate judge cited the wrong section of the regulations, 20 C.F.R.
§ 1527(d)(3), instead of 20 C.F.R. § 1527(c)(2). R&R at 11. The defendant argues that her position
that Dr. Ahmad’s statement is not a medical opinion is further supported by the form Dr. Ahmad
used to make his observations about the plaintiff, which was provided by a state program that has
different rules about disability than the Social Security regulations. The defendant contends that the
state form purports to determine the extent of disability as it relates to employability, rather than the
nature, severity, and limiting effects of the plaintiff’s impairments.
The plaintiff argues that Dr. Ahmad’s opinion that the plaintiff suffers from one to two panic
attacks per week despite treatment reflects judgments about the nature and severity of the plaintiff’s
mental illness.
The Secretary defines medical opinions as “statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
-6-
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). “The
Commissioner has elected to impose certain standards on the treatment of medical source evidence.”
Cole v. Comm’r of Soc. Sec., 661 F.3d 931, 937 (6th Cir. 2011) (citing 20 C.F.R. § 404.1502). The
Rule promulgated by the Secretary states that: “more weight [will be given] to opinions from your
treating sources, since these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your 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, such as consultative examinations or brief hospitalizations.” 20
C.F.R. § 404.1527(c)(2). The Sixth Circuit has consistently applied this rule. A treating physician’s
opinion should be given greater weight than those opinions of consultative physicians who are hired
for the purpose of litigation and who examine the claimant only once. See Jones v. Sec.’y of Health
& Human Servs., 945 F.2d 1365, 1370 & n.7 (6th Cir. 1991); Farris v. Sec’y of Health & Human
Servs., 773 F.2d 85, 90 (6th Cir. 1985). If a treating physician’s opinion is not contradicted,
complete deference must be given to it. Walker v. Sec’y of Health & Human Servs., 980 F.2d 1066,
1070 (6th Cir. 1992); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984).
However, a treating physician’s opinion may be rejected if there is good reason to do so.
Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988). The Sixth Circuit has held that treating
physicians’ opinions “are only given such deference when supported by objective medical
evidence.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citing Jones v.
Comm’r of Soc. Sec., 336 F. 3d 469, 477 (6th Cir. 2003). Where a treating physician renders an
opinion using legal language as opposed to medical terminology, the Court may likewise reject it
if it is not supported by clinical or other medical evidence in the record. See Casey v. Sec’y of
-7-
Health & Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993). To that end, the Secretary has
declared that “[o]pinions on some issues . . . are not medical opinions, . . . but are, instead, opinions
on issues reserved to the Commissioner because they are administrative findings that are dispositive
of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §
404.1527(d). The regulations explain:
We are responsible for making the determination or decision about whether you meet
the statutory definition of disability. In so doing, we review all of the medical
findings and other evidence that support a medical source’s statement that you are
disabled. A statement by a medical source that you are “disabled” or “unable to
work” does not mean that we will determine that you are disabled.
20 C.F.R. § 404.1527(d)(1).
The regulations make clear that the Commissioner will not be bound by a treating
physician’s opinion that a claimant is unable to work. But the mere inclusion of such an observation
in a medical source’s description of a claimant’s limitations will not disqualify the statement as a
medical opinion entitled to substantial deference under 20 C.F.R. § 404.1527(c)(2). Here, Dr.
Ahmad’s statement described fully the nature of Mr. Schalk’s panic attacks, describing them as
“chronic” and “severe” — so severe and so frequent (one to two per week), he explained, that Mr.
Schalk was unable to keep a job. Those statements did not amount to an opinion on disability,
which would be reserved to the Commissioner. Instead, they more closely resembled “statements
from [a] physician[] . . . that reflect judgments about the nature and severity of an individual’s
impairment(s), including symptoms, diagnosis and prognosis, what the individual [cannot, and] can
still do despite the impairment(s), and physical and mental restrictions.” Social Security Ruling
(SSR) 06-03P 2006 WL 2329939, at *2 (2006).
-8-
The magistrate judge properly determined that Dr. Ahmad’s report in the record amounted
to a medical opinion within the meaning of 20 C.F.R. § 404.1527(a)(2). The defendant’s first
objection will be overruled.
Next, the defendant argues that even though the ALJ was not required to provide good
reasons for discounting Dr. Ahmad’s opinion, she nonetheless did. The defendant maintains that
the ALJ gave Dr. Ahmad’s opinion little weight because it was inconsistent with the medical
evidence and the record as a whole, including Dr. Ahmad’s own “unremarkable” treatment notes,
which revealed improvement with regular treatment and medication usage. The defendant argues
that the plaintiff himself reported that his conditions were improving. Moreover, Dr. Ahmad did not
examine the plaintiff on the day he filled out the report. The ALJ noted that Dr. Ahmad’s opinion
appeared to be based heavily on the plaintiff’s subjective report of symptoms and limitations, which
the defendant argues Dr. Ahmad uncritically accepted.
If an ALJ is unpersuaded by a medical opinion, he “is required to provide ‘good reasons’ for
discounting the weight given to a treating-source opinion.” Gayheart Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527(c)(2)). To enable appellate review of the
ALJ’s decision, “[t]hese reasons must be ‘supported by the evidence in the case record, and must
be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave
to the treating source’s medical opinion and the reasons for that weight.’” Ibid. (quoting Soc. Sec.
Rul. No. 96–2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)).
As the plaintiff observes, the defendant does not contest that Dr. Ahmad opined that Mr.
Schalk was experiencing one to two panic attacks per week despite four years of treatment. And the
defendant’s contention that Dr. Ahmad’s treatment notes were unremarkable is undermined by
-9-
failing to cite any medical evidence to support that position. The defendant contends that even if
the ALJ did not give specific reasons for discounting Dr. Ahmad’s report specifically, those reasons
can be divined from the ALJ’s decision as a whole. The defendant suggests that the opinion was
inconsistent with other record evidence, and points to a 2003 psychiatric evaluation indicating that
when taking Paxil, Mr. Schalk’s depression and the frequency of panic attacks were reduced, and
his agoraphobic behavior “seem[ed] to have significantly resolved.” Def.’s obj. at 6 (citing Tr.
222-24). That observation provides little insight, of course, since the claimed disability onset date
was not until January 9, 2007. The defendant also refers to a statement that as of March 2006 the
plaintiff was doing “very well,” with only minor anxieties after he stopped taking Lexapro. Ibid.
(citing Tr. 244). However, Mr. Schelk reported “pretty much daily” panic attacks as of November
2006, Tr. 242, and his symptoms did not improve until he restarted Lexapro, Tr. 239.
It is true that the ALJ properly considered the plaintiff’s hearing testimony — that his panic
attacks occurred two to three times per week — as inconsistent with the medical record reports of
attacks at a rate of no more than one to two per week. And that inconsistency could bear on the
plaintiff’s credibility. But it does not undermine Dr. Ahmad’s opinion, which is congruent with
other reports in the record. And it likely would not change a disability determination based on the
VE’s opinion that attacks such at a frequency could render the plaintiff unemployable.
The plaintiff argues that the defendant merely relies on the ALJ’s statements of record
inconsistency and “unremarkable” treatment notes to disregard every treating medical provider’s
opinion. The plaintiff asserts that it was this failure of a previous ALJ to provide any rationale for
rejecting the treating opinions that caused this matter to be remanded in the first instance. The
defendant also argues that Dr. Ahmad’s opinion should be disregarded because he did not examine
-10-
the plaintiff on the day the report was completed. However, it appears that Dr. Ahmad’s report was
based on four years of treating the plaintiff for panic attacks, social anxiety, and depression.
The defendant has not pointed to any evidence in the record that the plaintiff does not suffer
from panic attacks, or that the panic attacks are so infrequent that they would not interfere with
competitive employment. The ALJ’s rejection of Dr. Ahmad’s report and his opinions contained
in that report are not supported by sufficient reasons. The Sixth Circuit has held that reversal is
required in a Social Security disability benefits case where the ALJ rejects a treating physician’s
opinion as to the restrictions on a claimant’s ability to work and fails to give good reasons for not
giving weight to the opinion. Wilson v. Comm’r of Social Sec., 378 F.3d 541, 546 (6th Cir. 2004).
There, the court stated that “pursuant to [20 C.F.R. § 404.1527(c)(2)], a decision denying benefits
‘must contain specific reasons for the weight given to the treating source’s medical opinion,
supported by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.’” Id. at 544 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5
(1996). The error is not harmless when the reviewing court is hampered by the lack of explanation
and the rejected evidence could very well establish disability, as here.
The defendant’s second objection will be overruled.
After a de novo review of the entire record and the materials submitted by the parties, the
Court concludes that the magistrate judge properly reviewed the administrative record and applied
the correct law in reaching her conclusion. The Court has considered the defendant’s objections to
the report and finds them to lack merit.
-11-
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#22] is ADOPTED.
It is further ORDERED that the defendant’s objections [dkt. #23] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #15] is
GRANTED IN PART.
It is further ORDERED that the defendant’s motion for summary judgment [dkt #18] is
DENIED.
It is further ORDERED that the findings of the Commissioner are REVERSED, and the
matter is REMANDED to the Commissioner for further proceedings.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: October 19, 2016
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 19, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI
-12-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?