DeHaven v. Commissioner of Social Security
Filing
28
Memorandum Opinion and Order that the decision of the Commissioner is reversed and the case remanded for further administrative proceedings (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 3/7/2014. (S,G)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
IVAN DeHAVEN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:12 CV 2859
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER
Introduction
A.
Nature of the case and proceedings
Before me1 is an action by Ivan DeHaven under 42 U.S.C. § 405(g) for judicial review
of the final decision of the Commissioner of Social Security denying his applications for
disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and
1
ECF # 23. The parties have consented to my exercise of jurisdiction.
2
ECF # 1.
3
ECF # 8.
4
ECF # 9.
5
ECF # 5.
procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10
B.
Background facts and decision of the Administrative Law Judge (“ALJ”)
DeHaven, who was 52 years old at the time of the hearing,11 has completed high
school along with some additional technical training, and served in the Marine Corps.12 He
has worked as a construction laborer, janitor, and trash collector.13 Hehas also been
incarcerated for cocaine possession,14 although he asserts that he has not used drugs since
6
ECF # 13.
7
ECF # 22 (Commissioner’s brief); ECF # 20 (DeHaven’s brief), ECF # 24
(DeHaven’s reply brief).
8
ECF # 22-1 (Commissioner’s charts); ECF # 21 (DeHaven’s charts).
9
ECF # 12 (DeHaven’s fact sheet).
10
ECF # 27.
11
See, Transcript (“Tr.”) at 21.
12
Id. at 1183.
13
Id. at 21.
14
Id. at 1175.
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2006.15 Notwithstanding his asymptomatic HIV status, osteoarthritis, and difficulty in dealing
with others,16 he has had a long term girlfriend17 and is largely able to take care of himself.18
The ALJ, whose decision became the final decision of the Commissioner, found that
DeHaven had the following severe impairments: asymptomatic HIV infection, osteoarthrosis
and allied disorders, and anti-social personality disorder.19
After concluding that the relevant impairments did not meet or equal a listing,20 the
ALJ made the following finding regarding DeHaven’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except lift/carry (including
upward puffing) at the medium exertional level, stand/walk/sit (with normal
breaks) for six hours out of an eight-hour workday, unlimited push/pull
(including hand/foot controls) within the exertional limitations, occasional
climbing of ladders/ropes/scaffolds, occasional kneeling or crouching, no
manipulative, visual, communicative, or environmental limitations, able to
follow instructions and deal with routine changes which are easily explained,
difficulty dealing with the public and accepting close supervision, but is able
to relate superficially to coworkers and supervisors, and would perform best
in a position which allows working primarily alone.21
15
Id. at 43.
16
Id. at 18.
17
Id. at 20.
18
Id. at 19.
19
Id. at 15.
20
Id. at 16.
21
Id. at 17.
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Based on that RFC, and the testimony of a vocational expert (“VE”), the ALJ found
DeHaven capable of some of his past relevant work as a janitor and as a trash collector but
not as a construction laborer.22 Alternatively, the ALJ determined that a significant number
of jobs existed locally and nationally that DeHaven could perform with his RFC.23 He
concluded, therefore, that DeHaven was not under a disability.24
C.
Issues on judicial review and disposition
DeHaven asks for reversal of the Commissioner’s decision on the ground that it does
not have the support of substantial evidence in the administrative record. Specifically,
DeHaven presents three issues for decision:
•
The ALJ found that DeHaven had the exertional capacity for medium
work. This finding contradicted the opinions of acceptable medical
sources that DeHaven could perform no more than light work. No
acceptable medical source opined capability for medium work. Does
the ALJ’s finding of capability for medium work and his rejection of
acceptable medical source opinions of a limitation to less than medium
work have the support of substantial evidence?
•
In adopting mental limitations in the RFC, the ALJ gave more weight
to the opinion of a state agency reviewing psychologist but only less or
some weight to the opinions of a treating psychologist and treating
psychiatrist. Does the ALJ’s analysis of and articulation regarding these
medical source opinions have the support of substantial evidence?
•
The ALJ found at step three that DeHaven had moderate difficulties
with concentration, persistence, or pace. The ALJ did not, however,
include in the RFC any limitations related to stress or production
22
Id. at 21.
23
Id. at 21-22.
24
Id. at 22.
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quotas. Did the step three finding and the medical evidence warrant the
inclusion of greater limitations in the RFC addressed to difficulties with
concentration, persistence, or pace?
For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
not supported by substantial evidence and, therefore, must be reversed and the matter
remanded for further proceedings.
Analysis
A.
Standards of review
1.
Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable
to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.25
25
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.26 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.27
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.
Treating physician rule and good reasons requirement
The regulations of the Social Security Administration require the Commissioner to
give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.
Generally, we give more weight 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
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.28
26
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
27
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
28
20 C.F.R. § 404.1527(d)(2).
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If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.29
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.30 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.31
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.32 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,33 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.34 In deciding if such
supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.35
29
Id.
30
Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).
31
Id.
32
Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
33
Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).
34
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).
35
Id. at 535.
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In Wilson v. Commissioner of Social Security,36 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.37 The court noted that the regulation expressly
contains a “good reasons” requirement.38 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
•
State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
case record.
•
Identify evidence supporting such finding.
•
Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.39
The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.40 It drew a distinction between a
regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.41 The former confers a substantial, procedural right on
36
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).
37
Id. at 544.
38
Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).
39
Id. at 546.
40
Id.
41
Id.
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the party invoking it that cannot be set aside for harmless error.42 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.43
The Sixth Circuit in Gayheart v. Commissioner of Social Security44 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.45 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
court had previously said in cases such as Rogers v. Commissioner of Social Security,46
Blakley v. Commissioner of Social Security,47 and Hensley v. Astrue.48
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.49 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
42
Id.
43
Id.
44
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (2013).
45
Id. at 375-76.
46
Rogers, 486 F.3d at 242.
47
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).
48
Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
49
Gayheart, 710 F.3d at 376.
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with other substantial evidence in the administrative record.50 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). Only if the ALJ decides not to give
the treating source’s opinion controlling weight will the analysis proceed to what weight the
opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii),
(3)-(6) and §§ 416.927(c)(2)(i)-(ii), (3)-(6).51 The treating source’s non-controlling status
notwithstanding, “there remains a presumption, albeit a rebuttable one, that the treating
physician is entitled to great deference.”52
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.53 The ALJ in Gayheart made no finding as to controlling weight and did not apply the
standards for controlling weight set out in the regulation.54 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary
criteria set out in §§ 1527(c)(i)-(ii), (3)-(6) of the regulations,55 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
50
Id.
51
Id.
52
Rogers, 486 F.3d at 242.
53
Gayheart, 710 F.3d at 376.
54
Id.
55
Id.
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and the treatment reports.56 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.57
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.58
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.59 The ALJ must assign specific weight to the opinion of each
treating source and, if the weight assigned is not controlling, then give good reasons for not
giving those opinions controlling weight.60 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating
56
Id.
57
Id.
58
Id.
59
Rogers, 486 F.3d 234 at 242.
60
Blakley, 581 F.3d at 406-07.
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physician disagrees with the opinion of a non-treating physician61 or that objective medical
evidence does not support that opinion.62
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.63 The Commissioner’s post hoc arguments on judicial review are immaterial.64
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).
The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:
61
Hensley, 573 F.3d at 266-67.
62
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
63
Blakley, 581 F.3d at 407.
64
Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147 (N.D. Ohio Jan. 14, 2010).
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•
the failure to mention and consider the opinion of a treating source,65
•
the rejection or discounting of the weight of a treating source without
assigning weight,66
•
the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),67
•
the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,68
•
the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,69 and
•
the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”70
The Sixth Circuit in Blakley71 expressed skepticism as to the Commissioner’s
argument that the error should be viewed as harmless since substantial evidence exists to
support the ultimate finding.72 Specifically, Blakley concluded that “even if we were to agree
65
Blakley, 581 F.3d at 407-08.
66
Id. at 408.
67
Id.
68
Id. at 409.
69
Hensley, 573 F.3d at 266-67.
70
Friend, 375 F. App’x at 551-52.
71
Blakley, 581 F.3d 399.
72
Id. at 409-10.
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that substantial evidence supports the ALJ’s weighing of each of these doctors’ opinions,
substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2)
as harmless error.”73
In Cole v. Astrue,74 the Sixth Circuit reemphasized that harmless error sufficient to
excuse the breach of the treating source rule only exists if the opinion it issues is so patently
deficient as to make it incredible, if the Commissioner implicitly adopts the source’s opinion
or makes findings consistent with it, or if the goal of the treating source regulation is satisfied
despite non-compliance.75
B.
Application of standards
This case requires yet another review of an ALJ’s treatment of the opinions of various
medical sources.
1.
Exertional limitations
The first issue, related to exertional limitations, challenges the finding of capability
for medium work. A consulting examining physician, Dr. Paras, opined that DeHaven had
the capability for sedentary work.76 The state agency reviewing physician, Dr. Albert, opined
73
Id. at 410.
74
Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).
75
Id. at 940.
76
Tr. at 910-11.
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that DeHaven had the capability for light work.77 Dr. Albert’s opinion was affirmed by
Dr. Perencevich.78
By finding DeHaven capable of medium work, the ALJ discounted all of these
opinions. He gave less weight to Dr. Paras’s opinion because of range of motion test results
reported therein and reliance on DeHaven’s subjective complaints.79 He dismissed the
opinions of Drs. Albert and Perencevich with the cursory conclusion that they were not
supported by objective medical evidence.80
DeHaven heavily relies upon my decision in Deskin v. Commissioner of Social
Security.81 Based on Deskin, he argues that the ALJ “played doctor” and interpreted raw
medical data. This is not a “pure” Deskin case, however. In Deskin, the ALJ made a residual
functional capacity finding based on a record that contained no acceptable medical source
opinion for several critical years in the relevant time period, despite substantial medical
records generated during that time period. Here, however, the transcript contains three
acceptable medical source opinions covering the relevant time period, which the ALJ
discounted in adopting a lesser exertional limitation. As I stated in Kizys v. Commissioner
77
Id. at 916-23.
78
Id. at 1133.
79
Id. at 20.
80
Id.
81
Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908 (6th Cir. 2008).
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of Social Security,82 the ALJ may use medical source opinions “as a guide to peg a residual
functional capacity finding” less restrictive than that opined by the sources provided that the
ALJ gives good reasons for doing so as required by the regulations.83
It is arguable that the ALJ did enough with respect to Dr. Paras’s opinion of a
limitation to sedentary work based on range of motion examination results and reliance on
subjective complaints. The rejection of the opinions of Drs. Albert and Perencevich limiting
DeHaven to light work cannot be as easily defended. The ALJ gave as reason for assigning
less weight “not supported by objective medical evidence.”84 He does not elaborate on what
this objective medical evidence consists of.
Counsel for the Commissioner attempts to support the ALJ’s adoption of a less
restrictive exertional RFC on the credibility finding. DeHaven specifically states that he is
not challenging the credibility finding. Other than discussion of the inconsistency and
unreliability of some of DeHaven’s representations about his sexual activity, part-time work,
and alcohol and tobacco consumption, the ALJ points to x-rays taken in 2007 showing only
minimal degenerative change and a report that in 2010 he walked three miles to get to a
medical center. This is not sufficient analysis and articulation to discount the opinions of the
acceptable medical sources and adopt a less restrictive exertional RFC.
82
Kizys v. Comm’r of Soc. Sec., No. 3:10 CV 25, 2011 WL 5024866 (N.D. Ohio
Oct. 21, 2011).
83
Id., at *2.
84
Tr. at 20.
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2.
Mental limitations – the weighing of the opinions of the acceptable medical sources
As to the ALJ’s treatment of the opinions from two treating sources – Pamela
Zalewski, M.D. and Laura Yahney, Ph.D. – DeHaven maintains that the ALJ’s failure to
assign a clear weight to Dr. Zalewski’s opinion, and failure to articulate good reasons for
discounting the two opinions, should result in a remand.85 The Commissioner contends that
the ALJ was justified in giving less weight to these sources because, read as a whole, the
opinions “were not supported by [DeHaven’s] objective evidence of record.”86 Specifically,
the Commissioner maintains that the ALJ reasonably gave less weight to these opinions
because of the “absence of rationale” for Dr. Yahney’s opinion and because of the “lack of
corroborating treatment notes” from Dr. Zalewski.87
As to Dr. Yahney, there is some uncertainty as to whether the ALJ even
acknowledged Dr. Yahney as a treating source, referring to her in the opinion as “an
evaluating psychological consultant.”88 In fact, as the Commissioner acknowledges,
DeHaven’s “most consistent adherence to treatment was 20 bi-monthly sessions of
supportive psychotherapy with Laura Yahney, Ph.D., from April 2009 to July 2010, ending
when she was no longer a VA provider. Records indicate they addressed coping skills,
interpersonal boundaries with family, assertiveness skills, and noting [sic] triggers to
85
ECF # 20 at 9.
86
ECF # 22 at 14 (citing transcript at 20).
87
Id. at 15.
88
Tr. at 20.
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substance abuse relapse.”89 Plainly, as the Commissioner’s recitation of the record
establishes, Dr. Yahney was a treating source of long standing, who had a significant history
with DeHaven.
It is on that foundation of nearly a year of regularly treating DeHaven, that
Dr. Yahney in February, 2010, gave her opinion in answers to a questionnaire that explicitly
states “is designed to amplify your records (and narrative report, if any)” by “vocationally
quantifying” how the claimant’s mental condition “would impact on the claimant being on
task in an 8 hour workday.”90 In other word, by its own stated terms, the questionnaire
presupposes the existence of supporting records, but seeks to “amplify” those records by
obtaining an answer as to how those conditions would translate into vocational limitations.
To now contend, as did the ALJ, that the particular work-related limitations set forth by
Dr. Yahney should be discounted or dismissed because they came without a supporting
rationale is to ignore the basic structure of the questionnaire itself and penalize Dr. Yahney
for not providing something the questionnaire never asked for and indeed fairly specifically
stated was assumed to already exist.
Taken together, it is obvious that the ALJ was clearly mistaken in not recognizing
Dr. Yahney as a treating source and so analyzing her opinion according to applicable
standards. Further, by citing reasons for rejection that are contradicted by the plain language
89
ECF # 22 at 8.
90
Tr. at 1136.
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of the opinion document itself and take no account of the extensive treatment history
extending over a year of twice-a-month therapy, the ALJ did not provide “good reasons” for
his discounting of the weight given to this opinion. Nor does this analysis fit within any of
the recognized harmless error categories cited above that might excuse the multiple mistakes
detailed here. As such, these factors provide a basis for remanding the matter for further
consideration.
Similarly, the ALJ’s giving greater weight to the opinions of the state agency
psychological consultants, Vicki Casterline, Ph.D. and Douglas Pawlarcyzk, Ph.D., as
contrasted with the weight given to treating physician Pamela Zalewski, M.D., also provides
grounds for a remand. In particular, the ALJ gave “less weight” to that portion of
Dr. Zalewski’s opinion concerning “various limitations and missing work,” because it was
“not substantiated by Dr. Zalewski.”91 By contrast, the ALJ gave “more weight” to
Casterline’s opinion, which was affirmed by Dr. Pawlarcyzk, that DeHaven has only “mild”
restrictions as to functions of daily life and “moderate difficulties” in maintaining
concentration, persistence or pace.92
As DeHaven notes, a significant issue arises here in that the two consulting sources
gave their higher-weighted opinions in July, 2009 (Casterline)93 and January, 2010
91
Id. at 20.
92
Id. at 19-20.
93
Id. at 627-30.
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(Pawlarcyzk),94 while the lesser-weighted treating source opinions by Dr. Yahney (February,
2010)95 and Zalewski (April, 2011)96 were done later, and so could not have been considered
by the reviewing sources.
The Sixth Circuit teaches that where the ALJ adopts the RFC opinion of a
non-examining source over the limitations set out by an examining one, particularly where
the ALJ’s opinion gives no indication that he has “at least considered” the fact that the
non-examining source has not reviewed the entire record, the matter should be remanded.97
Because there is also no indication here that the ALJ considered that the reviewing source
opinions given “more weight” were based on review of a record lacking the reports of two
treating sources, the matter should be remanded so that any greater weight given to reviewing
sources over treating ones can be well-justified and articulated.
3.
Mental limitations and moderate difficulties with concentration, persistence, or
pace
The third issue, which relies upon the Sixth Circuit’s decision in Ealy v.
Commissioner of Social Security,98 has its foundation in the ALJ’s finding of moderate
94
Id. at 1133.
95
Id. at 1136-37.
96
Id. at 1241-42.
97
Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 520 (6th Cir. 2011) (citing
Blakley, 581 F.3d at 409).
98
Ealy v. Comm’r of Soc. Sec., 594 F.3d 504 (6th Cir. 2010).
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difficulties in concentration, persistence, or pace at step three.99 The RFC includes no
limitations for stress or production quotas. If the opinions of the treating sources are given
greater weight, there may be a basis for including such limitations in the RFC. As discussed
in earlier opinions, Ealy does not automatically require limitations on stress and production
quotas if the ALJ finds at step three that there are moderate difficulties in concentration,
persistence, or pace.100 There must be something more in the transcript or in the ALJ’s
findings to justify limitations beyond unskilled work.101 There is no bright line, however, and
what additional limitations, if any, should appear in the RFC must be decided on a caseby-case basis.102 Because of the remand to evaluate the opinions of the acceptable medical
sources as discussed above, I note the Ealy problem and direct reconsideration of additional
mental limitations in light of the weight assigned on remand to those acceptable medical
sources.103
Conclusion
Substantial evidence does not support the finding of the Commissioner that DeHaven
had no disability. Accordingly, the decision of the Commissioner denying DeHaven
99
Tr. at 16.
100
Smith v. Colvin, No. 1:12 CV 2165, 2013 WL 4431244, at *4 (N.D. Ohio Aug. 16,
101
Id.
102
Id.
103
Id. at *6.
2013).
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disability insurance benefits and supplemental security income is reversed and the matter
remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: March 7, 2014
s/ William H. Baughman, Jr.
United States Magistrate Judge
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