Gardner v. Commissioner of Social Security

Filing 23

Opinion and Order overruling 20 objections, adopting 19 Report and Recommendation and vacating decision of the administrative law judge. Judge Dan Aaron Polster on 7/14/15. (P,R)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

FLANDERS K. GARDNER,
Plaintiff,
vs.
COMMISSIONER OF SOC. SECURITY,
Defendant.

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CASE NO. 1:14 CV 1515
JUDGE DAN AARON POLSTER
OPINION AND ORDER

Plaintiff Flanders K. Gardner challenges the final decision of the Acting Commissioner
of Social Security denying his claim for a Period of Disability (“POD”), Disability Insurance
Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Title II and Title XVI of the
Social Security Act, 42 U.S.C. §§ 416(I), 423, 1381 et seq. The Court referred the case to
Magistrate Judge Greg White for preparation of a Report and Recommendation pursuant to 42
U.S.C. § 405(g) and Local Rule 72.2(b). (Doc #: 19 (“R&R”).) Magistrate Judge White
recommends that the Court vacate the Commissioner’s decision and order remand pursuant to
§ 405(g) sentence four. (R&R at 1.) The Commissioner filed objections to the R&R. (Doc #:
20 (“Obj.”).) Having reviewed the record, the R&R and the objections, the Court
OVERRULES the objections, ADOPTS the R&R, VACATES the decision of the
administrative law judge (“ALJ”), and REMANDS the case to the Social Security
Administration (“SSA”) for further proceedings consistent with this opinion.

I.
Flanders Gardner, a high-school educated truck driver for over 20 years, suffered a
cerebral vascular event on August 24, 2010 which gave rise to right facial droop, right-sided
hemiparesis, tremors, and severe, recurrent major depression, not to mention the loss of his job
and marriage. Among other things, Gardner’s treating psychiatrist, Dr. Thompson, and therapist,
Ms. Bibro-Ruch, who treated Gardner monthly, opined that he would often have difficulty
maintaining concentration, pace and task persistence during an eight-hour workday, would
occasionally have difficulty managing even a low stress environment and interacting
appropriately with coworkers, and would likely miss 8 to 10 days per month due to exacerbation
of his depression symptoms. They recommended that Gardner receive disability based on his
functional impairments due to Major Depression.
After a hearing, the ALJ determined that Gardner suffers from the following severe
impairments: major depressive disorder, severe, recurrent and intermittent, and right-sided
weakness involving the arm and leg. However, the ALJ found that Gardner maintained the
residual functional capacity to perform limited light work. In so finding, the ALJ expressly
accorded “little” to “no” weight to Gardner’s treating mental healthcare professionals’ opinions
regarding the effect Gardner’s psychological symptoms had on his ability to work. (Doc #: 14
at 21.) And missing entirely from the ALJ’s analysis is any mention of their opinion that
Gardner experiences “approximately 8 - 10 bad days per month during which [his] symptoms are
increased and [he] would not be able to complete an 8-hour work shift.”1 (Doc #: 14 at 515.)
1

The ALJ also assigned “little” weight to the opinion of Dr. Sherman, an internist whom
the State employed to examine Gardner in May 2011 and whose opinion the ALJ discounted, in
part, because his assessment was based on a one-time examination (Doc #: 14 at 21), and assigned
“controlling” weight to the opinions of Dr. Hammer, a neurologist who saw Gardner only two

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See, e.g., Shrader v. Astrue, 2012 WL 5383120 at *6 (E.D. Mich. Nov. 1, 2012) (“If relevant
evidence is not mentioned, the Court cannot determine if it was discounted or merely
overlooked.”). The ALJ’s decision became final when the Appeals Council denied further
review.
On appeal, Gardner argues, among other things, that the ALJ violated the SSA’s “treating
source” regulation, 20 C.F.R. § 404.1527(d)(2). The Magistrate Judge agrees, finding that the
ALJ’s “decision fails to provide ‘good reasons’ for rejecting Dr. Thompson’s opinions.” (R&R
at 9.) The Commissioner objects to the R&R alleging that it fails to follow the deferential
substantial evidence standard that is applicable to judicial review of ALJ decisions. (Obj. at 1.)
Specifically, the Commissioner contends that the Magistrate Judge incorrectly determines that:
(1)

the Commissioner’s identification of inconsistencies between Dr. Thompson’s
and Ms. Bibro-Ruch’s opinion and their treatment notes was improper post hoc
rationalization;

(2)

it was improper for the ALJ to rely on Global Assessment Functioning “GAF”
scores to discount Dr. Thompson’s opinion; and

(3)

the ALJ is required to discuss every regulatory factor in 20 C.F.R. §§ 404.1527(d)
in order to satisfy the treating source rule.

(Id. at 2-3.)
II.
The findings of the Commissioner will be affirmed unless the ALJ failed to apply the
correct legal standard or made findings of fact unsupported by substantial evidence. Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
times. Even though Dr. Hammer is not a psychiatrist, he observed that Gardner “gets tearful every
time I mentioned his incident and his truck,” “appears to be suffering some symptoms of
posttraumatic stress disorder,” and recommends that his anti-depressant medication be increased
from 20 mgs a day to 30 mgs. (Id. at 458.)

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The “treating physician” rule, 20 C.F.R. § 404.1527(d)(2), requires an ALJ to give
controlling weight to the opinion of a treating physician if it: (1) is based upon medical data and
diagnostic tests, and (2) is not inconsistent with other substantial evidence in the record. Nejat v.
Comm’r of Soc. Sec., 359 Fed.Appx. 574, 577 (6th Cir. 2009). When a treating physician’s
opinion is not controlling, “an ALJ must apply certain factors [under 20 C.F.R. § 404.1527(d)]. .
. in determining what weight to give the opinion.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,
747 (6th Cir. 2007) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (2004)).
The ALJ must also articulate “good reasons” for discounting a treating physician’s
medical assessment, “reasons that are ‘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.’” Rogers, 486 F.3d at 242 (quoting Soc. Sec. Rule. 96-2p, 1996 WL
374188, at *4). Failure to specify “good reasons” for discounting a treating physician’s opinion
“denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified
based upon the record.” Rogers, 486 F.3d at 243.
III.
The Commissioner first objects that its identification of inconsistencies between Dr.
Thompson’s and Ms. Bibro-Ruch’s opinion and their treatment notes was improper post hoc
rationalization, stating that these inconsistencies were exemplified in the record. (Obj. at 1.)
This objection is simply a reiteration of the Commissioner’s original argument, which has
already been considered and rejected by the Magistrate Judge. The Magistrate Judge assessed
that the Commissioner’s analysis, even if considered by the Court, does not “necessarily

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undermine or conflict with the limitations assessed by Dr. Thompson and Ms. Bibro-Ruch”
because “an ALJ does not have the expertise to make medical judgments.” (R&R at 9 n.5.)
The Commissioner also argues that the Sixth Circuit allows ALJs to rely on GAF scores
to discount a treating physician’s medical opinion. (Obj. at 2.) Under the Sixth Circuit, there is
no “statutory, regulatory, or other authority requiring the ALJ to put stock in the GAF score. . .”
Kornecky v. Comm'r of Soc. Sec., 167 Fed.App'x 496, 511 (6th Cir. 2006) (finding that “even if
the ALJ placed some weight on Kornecky's GAF scores, any tendency they had to suggest that
Kornecky could not work was countered by the vocational expert's testimony that someone with
her limitations could still do certain widely available work.”) Even though the Sixth Circuit
denied the claimant’s benefits in Kornecky, its finding concerning GAF scores stands for the
proposition that expert testimony carries more weight than the scores because “a score may have
little or no bearing on the subject's social and occupational functioning.” Id.
The Commissioner relies on Nelson v. Comm’r of Soc. Sec., but in that case, the court
held that the ALJ properly discounted the opinions of the treating physicians because he
considered a slew of contrary medical evidence. 195 Fed.App’x 462, 472. The ALJ in Nelson
only briefly considered the claimant’s GAF score, placing much more reliance on testimony
made by vocational experts in determining the claimant’s disability. Id.
Here, the ALJ states simply that “[Gardner’s] GAF scores have ranged from 55-60,
denoting only moderate symptoms, at best.” (Doc #: 14 (Tr.) at 21.) The Magistrate Judge
finds that “the ALJ furnishes no medical basis for his conclusion that GAF scores between 55-60
are inherently inconsistent with the limitations Dr. Thompson assessed.” (Tr. at 10.) As noted in

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Kornecky, the GAF scores may not reflect an individual’s functional abilities, especially where
expert testimony indicates otherwise.
Lastly, the Commissioner contends that the Magistrate Judge incorrectly “faults the ALJ
for failing to explicitly discuss the factors in 20 C.F.R. §§ 404.1527(d) and 416.927(c)(2),
applicable to the treating source opinion.” (Obj. at 3.) Per § 404.1527(d), the ALJ is required to
consider certain factors 2 “when deciding to afford non-controlling weight to an opinion by a
treating source.” Nejat, 359 Fed.Appx. at 578. The ALJ failed to consider the factors, and thus,
violated the SSA’s own regulations. Even if the ALJ had considered these factors, the
substantial evidence in the record weighs in favor of placing controlling weight in Dr.
Thompson’s and Ms. Bibro-Ruch’s opinions.
Because the ALJ failed to provide good reasons for discounting Dr. Thompson’s medical
opinion, the Magistrate Judge properly concluded that the ALJ made findings of fact
unsupported by substantial evidence. The ALJ relies on his own determination of the
significance of Gardner’s GAF scores and Medical Status Evaluations to discount Dr.
Thompson’s opinion. In the process of making these observations, however, the ALJ improperly
makes medical judgments and does not otherwise explain how these diagnostic tests are
incompatible with Dr. Thompson’s opinion that Gardner is medically disabled.
(Continued on next page.)

2

These factors include: “ (1) length of the treatment relationship and frequency of the
examination; (2) the
nature and extent of the treatment relationship; (3) supportability of the
opinion; (4) consistency of the opinion with the record as a whole; and (5) the specialization of the
treating source.” Bowen, 478 F.3d at 747 (citing 20 C.F.R. § 404.1527(d)).

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IV.
Accordingly, the Court hereby OVERRULES the objections, (Doc #: 20), ADOPTS the
R&R (Doc #: 19)), VACATES the Commissioner’s decision denying Gardner’s applications for
POD, DIB, and SSI, and REMANDS the case to the SSA for further proceedings consistent with
this Opinion and Order.
IT IS SO ORDERED.

/s/Dan Aaron Polster July 14, 2015
Dan Aaron Polster
United States District Judge

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