Russell v. Commissioner of Social Security Administration
Filing
24
Memorandum Opinion and Order. Substantial evidence does not support the finding of the Commissioner that Russell had no disability. Therefore, the denial of Russell's applications is reversed and the matter remanded for further proceedings consistent with this opinion. (Related docs # 1 , 14 ). Signed by Magistrate Judge William H. Baughman, Jr on 8/31/15. (H,D)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELLY RUSSELL,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:14 CV 1186
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER
Introduction
A.
Nature of the case and proceedings
Before me1 is an action by Kelly Russell 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 # 14. The parties have consented to my exercise of jurisdiction.
2
ECF # 1.
3
ECF # 10.
4
ECF # 11.
5
ECF # 5.
procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9
B.
Background facts and decision of the Administrative Law Judge (“ALJ”)
Russell, who was 46 years old at the time of the administrative decision,10 has a high
school education and has worked at various skilled, semi-skilled and unskilled jobs with
different exertional levels.11 He has HIV, which has been described as “asymptomatic,”12 and
was incarcerated in 2012.13 He lives alone,14 but receives help from his mother in performing
household tasks.15
The ALJ, whose decision became the final decision of the Commissioner, found that
Russell had the following severe impairments: human immunodeficiency virus, degenerative
6
ECF # 13.
7
ECF # 20 (Russell’s brief); ECF # 23 (Commissioner’s brief).
8
ECF # 20-1 (Russell’s charts); ECF # 23-1 (Commissioner’s charts).
9
ECF # 19 (Russell’s fact sheet).
10
Transcript (“Tr.”) at 79, 81.
11
Id. at 79.
12
Id. at 75.
13
Id. at 76.
14
Id.
15
Id. at 75.
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disc disease, carpal tunnel syndrome, hypertension, major depressive disorder, anxiety,
personality disorder, and substance abuse disorders.16
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Russell’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 light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except that he could never climb
ladders, ropes, or scaffolds, occasionally climb ramps or stairs, and
occasionally stoop, kneel, crouch, crawl, or engage in activities requiring
balance. He could bilaterally frequently engage in gross manipulation or
handling of objects, as well as fine manipulation or fingering of objects. He
should avoid concentrated exposure to extreme cold and avoid all exposure to
the operational control of moving machinery and unprotected heights. He
could engage in simple, routine, and repetitive work, requiring only occasional
interaction with the public and with coworkers.17
The ALJ decided that this residual functional capacity precluded Russell from performing
his past relevant work as a cleaner, groundskeeper, home health aide, tagger, assistant
manager, cashier, stores laborer, production worker, and production supervisor.18
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
16
Id. at 71.
17
Id. at 74.
18
Id. at 79.
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determined that a significant number of jobs existed locally and nationally that Russell could
perform.19 The ALJ, therefore, found Russell not under a disability.20
C.
Issues on judicial review and decision
Russell 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,
Russell presents the following issues for judicial review:
•
The ALJ found that Russell’s severe impairments do not meet or
medically equal Listing 14.08(K). Does substantial evidence support
that finding?
•
The ALJ assigned very little weight to Dr. Parrisbalogun’s mental
residual functional capacity assessment of Russell. Did the ALJ fail to
assign appropriate weight to the Dr. Parrisbalogun’s assessment?
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:
19
Id. at 80.
20
Id.
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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.21
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.22 The court may not disturb the
Commissioner’s findings, even if the preponderance of the evidence favors the claimant.23
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
21
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
22
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).
23
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
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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.24
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.25
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.26 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.27
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.28 Although the treating
24
20 C.F.R. § 404.1527(d)(2).
25
Id.
26
Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).
27
Id.
28
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).
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source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,29 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.30 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.31
In Wilson v. Commissioner of Social Security,32 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.33 The court noted that the regulation expressly
contains a “good reasons” requirement.34 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.
29
Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).
30
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).
31
Id. at 535.
32
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).
33
Id. at 544.
34
Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).
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•
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.35
The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.36 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.37 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.38 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.39
The Sixth Circuit in Gayheart v. Commissioner of Social Security40 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.41 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
35
Id. at 546.
36
Id.
37
Id.
38
Id.
39
Id.
40
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
41
Id. at 375-76.
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court had previously said in cases such as Rogers v. Commissioner of Social Security,42
Blakley v. Commissioner of Social Security,43 and Hensley v. Astrue.44
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.45 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
with other substantial evidence in the administrative record.46 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(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(d)(2)(i)-(ii),
(3)-(6) and §§ 416.927(d)(2)(i)-(ii), (3)-(6).47 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.”48
42
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).
43
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).
44
Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
45
Gayheart, 710 F.3d at 376.
46
Id.
47
Id.
48
Rogers, 486 F.3d at 242.
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The court in Gayheart cautioned against collapsing these two distinct analyses into
one.49 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.50 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(d)(i)-(ii), (3)-(6) of the regulations,51 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.52 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.53
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.54
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
49
Gayheart, 710 F.3d at 376.
50
Id.
51
Id.
52
Id.
53
Id.
54
Id.
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receive controlling weight.55 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.56 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating
physician disagrees with the opinion of a non-treating physician57 or that objective medical
evidence does not support that opinion.58
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.59 The Commissioner’s post hoc arguments on judicial review are immaterial.60
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
55
Rogers, 486 F.3d 234 at 242.
56
Blakley, 581 F.3d at 406-07.
57
Hensley, 573 F.3d at 266-67.
58
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
59
Blakley, 581 F.3d at 407.
60
Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14,
2010).
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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:
•
the failure to mention and consider the opinion of a treating source,61
•
the rejection or discounting of the weight of a treating source without
assigning weight,62
•
the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),63
•
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,64
•
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,65 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.”66
61
Blakley, 581 F.3d at 407-08.
62
Id. at 408.
63
Id.
64
Id. at 409.
65
Hensley, 573 F.3d at 266-67.
66
Friend, 375 F. App’x at 551-52.
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The Sixth Circuit in Blakley67 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.68 Specifically, Blakley concluded that “even if we were to agree
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.”69
In Cole v. Astrue,70 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.71
B.
Application of standards
1.
Meeting Listing 14.08(K)
Initially, I note that the parties implicitly seem to disagree about the exact Listing
relevant to Russell’s HIV impairment. Russell cites to Listing 14.08(K) as the applicable
67
Blakley, 581 F.3d 399.
68
Id. at 409-10.
69
Id. at 410.
70
Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).
71
Id. at 940.
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section,72 while the Commissioner invokes Listing 14.08(N).73 For his part, the ALJ states
that Russell’s HIV impairment was analyzed to see if it met “the requirements of listing
14.08,” without reference to any specific sub-grouping.74
In this situation I observe, as did the court in Roberts v. Colvin, that “Listing 14.08(N)
has been recodified to 14.08(K).”75 Thus, the Commissioner’s reference to 14.08(N) is
understood here as referring to the recodified 14.08(K).
Listing 14.08(K) deals with “repeated ... manifestations of HIV infection,” including
those listed in 14.08A-J, but without the requisite findings for those listings, “or other
manifestations ... resulting in significant documented symptoms or signs,” together with
marked limitations in one of the following three areas: (1) “activities of daily living,” (2)
“maintaining social functioning,” and (3) “completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.”76 While “cognitive or other mental
limitation” is given in this Listing as an “example” of a manifestation of an HIV infection
addressed in this provision, by its own terms the Listing is not confined to manifestations that
include cognitive or mental signs or symptoms.
72
ECF # 20 at 10-11.
73
ECF # 23 at 8-9.
74
Tr. at 73.
75
Roberts v. Colvin, 2013 WL 2297182, at *2 fn. 1 (D.Ariz. May 24, 2013)(citing 20
C.F.R. pt. 404, subpt. P, app. 1, § 14.08).
76
Id. (quoting Listing).
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The ALJ here was perfunctory in analyzing whether Russell had met Listing 14.08.
After first summarizing what are the initial subgroups of 14.08 that address various specific
manifestations of HIV, the ALJ, without directly citing to Listing 14.08(K), restated that
listing and then simply concluded that “[t]here is no evidence that shows the requirements
of this listing have been met.”77
Russell, for his part, argues that the evidence documents repeated manifestations of
his HIV infection, although virtually all of the evidence he cites in this regard is his own
testimony as to his symptoms78 - testimony the ALJ found “credible in kind but not in
degree,”79 noting in a later place that a consultative examination and his 2012 prison
evaluation show that Russell has only “modest” mental limitations, while his physical
examinations do not show “especially severe symptoms.” 80
The Commissioner, in turn, argues that the ALJ’s conclusion as to Listing 14.08 can
be supported “given the opinion of the state reviewing physicians and mental health experts
....”81 But although this is technically correct, the ALJ’s opinion also states that the opinions
of two state agency consultants were assigned only “little weight,”82 while the opinions of
77
Tr. at 73.
78
ECF # 20 at 11-12.
79
Tr . at 75.
80
Id. at 78.
81
ECF # 23 at 9.
82
Tr. at 77.
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two others - Dr. Vasiloff and Dr. Stock - appear to have been given great weight,83 although
the opinions given great weight are not directly cited or discussed by the ALJ in the
discussion of Listing 14.08. Further, it is by no means clear if any evidence exists that
Russell’s acknowledged mental limitations have been caused by his HIV, nor if any of the
opinions as to the severity of effects would be altered by consideration of the opinions of Dr.
Stephani Parrisbalogun, M.D. Russell’s treating psychiatrist.
In sum, this situation is somewhat risky for the reviewing court. The absence of a clear
analysis specifically addressed to Listing 14.08 setting forth the precise reasoning behind the
ALJ’s decision, means that I am left to assemble that reasoning from other findings in other
parts of the opinion. Thus, while the assembled pieces may appear to fit together into a
coherent whole, the fact that the assembly was done by the Court and not the ALJ
undermines any finding that the ALJ’s decision, not mine, was supported by substantial
evidence.
Accordingly, for the reasons stated, I conclude that the decision that Russell’s HIV
does not meet Listing 14.08 is not supported by substantial evidence. Thus, the matter must
be remanded for a clearer, more specific analysis of this issue, and a more precise articulation
of the resulting decision.
83
Id. at 78.
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2.
Treating source opinion
As noted, the record contains two functional opinions from Dr. Parrisbalogun, both
given in 2012.84 The ALJ reasoned that these opinions were entitled to only little weight.85
In support of that finding, the ALJ gave four reasons: (1) the short length of the treatment
relationship; (2) the opinions are conclusory, virtually without explanation; (3) the treatment
period closely overlaps with Russell’s period of drug use, which would distort his
functioning; and (4) the opinions are inconsistent with the other evidence of record.86
The Gayheart standards require that the analysis of a treating source opinion first
examine if it is entitled to controlling weight by considering if it is well-supported by clinical
evidence and consistent with the other evidence of record. Only if it is not entitled to such
weight as a result of this analysis is the review to proceed to the question of what weight is
warranted, which involves questions such as the length of the treatment relationship.
Here, the ALJ’s response to the first inquiry appears to be that Dr. Parrisbalogun’s
opinions are not well-supported by clinical findings, including the fact that they involve a
time when Russell was using drugs, and that they are not consistent with the record as a
whole, and so do not merit controlling weight. The ALJ then appears to answer Gayheart’s
second level of inquiry by finding the opinions deserve little weight because they are the
result of a short treatment period.
84
Tr. at 607-08, 630-31.
85
Id. at 78.
86
Id.
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I note first that Dr. Parrisbalogun appears to have treated Russell twice in 2012 - in
August87 and again in October,88 issuing functional opinions after each visit.89 The
regulations themselves indicate that “an ongoing treatment relationship” may exist where a
physician has treated or evaluated a patient “only a few times or only after long intervals (e.g.
twice a year) ... if the nature and frequency of the treatment of evaluation is typical” for the
claimant’s condition.90 Thus, without more, the mere fact that Dr. Parrisbalogun treated
Russell twice over the period of three months in 2012 neither definitively removes her as a
treating source under the first level of inquiry under Gayheart, nor, under the second level
of inquiry, does it provide a significant reason for discounting an opinion from what is
otherwise a treating source.
Further, the mere fact that Dr. Parrisbalogun’s opinions were given as responses on
a check-box form also does not provide substantial evidence that they are conclusory. As I
have noted before, check-box forms are used by medical sources advanced by both claimants
and the Commissioner. The key question is whether the answers so presented are supported
by the treatment notes or the other clinical evidence relied on by the evaluator. Here, there
is no indication that the ALJ compared the treatment notes with the checkbox responses
87
Tr. at 611.
88
Id. at 632-33.
89
Id. at 607-08 (August), 630-31 (October).
90
20 C.F.R. § 404.1502.
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before finding that those responses were not supported by the notes.91 Thus, the mere form
of the response does not serve as substantial evidence for concluding that Dr. Parrisbalogun
is not a treating source.
If there is no substantial evidence for rejecting Dr. Parrisbalogun as a treating source,
the inquiry does not move to the next level of deciding what weight to assign, since a treating
source opinion is entitled to controlling weight. Moreover, I note the additional explanations
for reducing the weight given Dr. Parrisbalogun’s opinion are also less than substantial. As
Russell notes, the explanation that Dr. Parrisbalogun’s opinion is tainted for having been
given while Russell was using drugs may not be accurate, and the statement that Dr.
Parrisbalogun’s opinion is contradicted by the record is difficult to assess because the ALJ
did not point to any specific areas where the opinion is contrary to other evidence.
In short, without prejudging the ultimate result, I find that the ALJ’s reasons for not
recognizing Dr. Parrisbalogun as a treating source, and then for discounting her functional
opinions, are not supported by substantial evidence. Thus, this matter must also be
considered on remand.
91
In this regard, see ECF # 20 at 14-15 (citing record).
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Conclusion
Accordingly, for the reasons given above, I find that substantial evidence does not
support the finding of the Commissioner that Russell had no disability. Therefore, the denial
of Russell’s applications is reversed and the matter remanded for further proceedings
consistent with this opinion.
IT IS SO ORDERED.
Dated: August 31, 2015
s/ William H. Baughman, Jr.
United States Magistrate Judge
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