Gannon v. Commissioner of Social Security
Filing
17
Memorandum Opinion and Order: The Commissioner's final decision is vacated and the matter is remanded for further proceedings consistent with this decision. Signed by Magistrate Judge Jonathan D. Greenberg on 10/5/18. (Related document 1 )(D,Ky)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHERYL L. GANNON,
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
)
)
CASE NO. 1:17CV02397
MAGISTRATE JUDGE
JONATHAN D. GREENBERG
MEMORANDUM OF OPINION
AND ORDER
Plaintiff, Cheryl L. Gannon (“Plaintiff” or “Gannon”), challenges the final decision of
Defendant, the Commissioner of Social Security (“Commissioner”), denying her application for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§
416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g)
and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth
below, the Commissioner’s final decision is VACATED and the case REMANDED for further
consideration consistent with this decision.
1
I.
PROCEDURAL HISTORY
In November 2013, Gannon filed an application for SSI alleging a disability onset date of
September 14, 2013 and claiming she was disabled due to a traumatic brain injury. (Transcript
(“Tr.”) 153, 186.). The application was denied and Gannon requested a hearing before an
administrative law judge (“ALJ”). (Tr. 92, 102.)
On April 12, 2016, an ALJ held a hearing, during which Gannon, represented by counsel,
and an impartial vocational expert (“VE”) testified. (Tr. 35-74.) On June 16, 2016, the ALJ
issued a written decision finding Gannon was not disabled from September 14, 2013, her alleged
onset date of disability, through November 3, 2015. The ALJ did find Gannon disabled
beginning November 4, 2015. (Tr. 11-26.) The ALJ’s decision became final on September 25,
2017, when the Appeals Council declined further review. (Tr. 1.)
On November 15, 2017, Gannon filed his/her Complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) The parties have completed briefing in this case.
(Doc. Nos. 15, 16.) Gannon asserts the following assignments of error:
(1)
The ALJ erred when he failed to provide “good/specific/supported”
reasons for discounting the consistent opinions of Plaintiff’s treating
providers.
(2)
The ALJ erred as a matter of law when he disregarded the import of
Plaintiff’s need for in-home health services.
(Doc. No. 15.)
II.
A.
EVIDENCE
Personal and Vocational Evidence
Gannon was born in November 1960 and was fifty two years-old at the time of her
alleged onset date, making her a “person closely approaching advanced age” under social
2
security regulations. (Tr. 75.) In November 2015, she turned fifty-five, making her a “person of
advanced age.” (Tr. 24.) See 20 C.F.R. §416.963(d), (e). She has a limited education and is
able to communicate in English. (Tr. 24.) She has past relevant work as a home health aide.
(Id.)
B.
Medical Evidence1
1.
Mental/Cognitive/Neurological Impairments
On September 14, 2013, Gannon sustained significant head injuries in a golf cart
accident. (Tr. 349.) She was life-flighted to a hospital after losing consciousness. (Id.)
Diagnostic imagining of the brain revealed an acute subdural hematoma, evidence of a
subarachnoid bleed, and a multiplanar skull fracture. (Id.) Gannon was admitted to the intensive
care unit for several weeks and underwent multiple evaluations. (Id.) Head CT scans indicated
her brain contusions and edema were progressing, but did not require surgery. (Id.) Gannon
also underwent a psychiatric consultation, where she presented with a flat affect, minimal eye
contact, and a delayed response to questioning. (Tr. 275.) Her toxicology screen was positive
for cocaine and alcohol. (Id.) During a neurobehavioral examination, she had limited eye
contact and occasional inattention. (Tr. 343.) She knew she was involved in a golf cart accident,
but was unaware what city or hospital she was currently in. (Id.) Montreal Cognitive
1
The Court notes the recitation of the medical evidence is limited to the evidence
cited in the parties’ Briefs. The Court further notes the Commissioner has cited
generally to large swaths of evidence in her Brief, at times totaling over 100
pages. (See Doc. No. 16 at 3, 5.) This does not comply with the Court’s Order,
which specifically provides the brief “shall cite, by exact and specific transcript
number, the pages relating” to the facts at issue. (Doc. No. 5 at 3.) Thus, the
Court will only discuss evidence which has been cited by the parties with
specificity, as required by this Court’s Order.
3
Assessment (“MOCA”) testing yielded a score of 20/30, demonstrating impairment. (Tr. 344.)
Hospital physicians recommended Gannon be discharged to a skilled nursing facility or
rehabilitation facility, or have 24-hour supervision in the home. (Tr. 349.) Gannon was
eventually discharged to her home on October 4, 2013, at her son’s request. (Id.)
On November 25, 2013, Gannon initially visited neurologist Bruce Cotugno, M.D. (Tr.
413.) She had no recollection of her hospitalization and complained of persistent headaches,
memory loss, behavioral changes, anger, and a loss of taste and smell. (Id.) On examination,
Gannon’s speech was pressured and her recall was absent. (Tr. 414.) She had normal sensation,
normal upper extremity strength, but slightly decreased lower extremity strength. (Id.) She had
a slow, ataxic gait. (Id.) Dr. Cotugno ordered a brain CT scan and an EEG. (Id.)
A December 16, 2013 brain CT scan revealed “extensive low density areas,” which was
“compatible with encephalomalacia and/or posttraumatic contusions.” (Tr. 417.) There was no
evidence of an acute hemorrhage. (Id.) Gannon’s EEG was abnormal, but did not provide
evidence of focal seizures. (Tr. 478.)
Gannon visited neurosurgeon Michael Oh, M.D., on January 13, 2014. (Tr. 425.) She
reported dizziness, poor balance, loss of taste and smell, memory loss, and headaches. (Id.) On
examination, Gannon seemed “frustrated . . . and somewhat disheveled.” (Id.) She had no clear
focal weakness on examination, but displayed “disorders of coordination and troubled finger-tonose.” (Tr. 426.) Dr. Oh reviewed her recent CT scan and advised her she did not require
surgery. (Id.) Dr. Oh also discussed Gannon’s care with her patient advocate, Dee Linsenski.
(Tr. 424.) He recommended Gannon undergo neuropsych testing, see an ENT, and obtain a
blended case manager. (Id.)
4
On January 14, 2014, Gannon followed up with Dr. Cotugno, who prescribed Lamictal
and Trazadone. (Tr. 472, 473.) Gannon visited her primary care doctor, Shweta Arora, M.D., on
January 16, 2014, reporting memory issues and dizziness. (Tr. 564.) Her physical examination
was normal and Dr. Arora referred her for a mammogram. (Tr. 566, 568.) She saw Dr. Arora
again on February 4, 2014, and her physical examination was again normal. (Tr. 446.)
On February 14, 2014, Gannon reported to Dr. Cotugno she had not had any seizures on
Lamictal. (Tr. 469.) On examination, Gannon’s gait was stable and her motor strength was
normal. (Tr. 470.) Dr. Cotugno advised her she possibly had benign positional vertigo and
provided her with some exercises to improve this condition. (Id.) Gannon returned to Dr.
Cotugno on March 4, 2014 for buzzing in her left ear and headaches. (Tr. 713.) Dr. Cotugno
adjusted Gannon’s headache medications. (Tr. 714.)
On April 1, 2014, Gannon underwent a psycho-social assessment with psychologist
Amelia Gremelspacher, Ph.D. (Tr. 525.) She reported poor short-term memory, agitation, and a
personality change since her accident. (Id.) On examination, Gannon was somewhat unkempt,
complaining loudly in the waiting room, sighing excessively during testing, and displaying
tangential thought content. (Tr. 527.) She received a score of 26/30 on the mini-mental status
examination (“MMSE”), indicating a “minor disruption.” (Id.) Dr. Gremelspacher diagnosed
5
Gannon with bipolar disorder and assessed a Global Assessment of Functioning2 (“GAF”) score
of 60. (Tr. 528.)
Gannon returned to Dr. Cotugno on April 23, 2014, reporting no seizures on her
medications and a return of her sense of taste and smell. (Tr. 549.) She complained of dizziness,
headaches, and hot flashes. (Id.) On examination, her gait was stable and her upper extremity
strength was normal. (Tr. 550.) Dr. Cotugno adjusted Gannon’s medications and prescribed
Paxil. (Id.) Gannon saw Dr. Cotugno again on May 19, 2014, reporting poor sleep and
throbbing headaches. (Tr. 593.) Dr. Cotugno prescribed Ambian and Cymbalta. (Tr. 594.)
On April 28, 2014, Gannon had her first visit with psychiatrist Oscar Urrea, M.D. (Tr.
687.) She was anxious on examination, but had normal memory, judgment, and perception.
(Id.) Gannon reported “too many problems since the accident” and Dr. Urrea noted she “clearly
has a cognitive impairment.” (Id.)
Gannon returned to Dr. Gremelspacher on June 12, 2014, reporting Dr. Urrea had
“annoyed” her because “he kept asking her a number of questions that she was unable to
answer.” (Tr. 690.) Dr. Gremelspacher noted Gannon was “unable to really get the idea that she
had asked for an evaluation and [Dr. Urrea’s] questions were an attempt to do so.” (Id.) She
again sighed excessively during testing and received a score of 16/30 on an MMSE, indicating
2
The GAF scale reports a clinician’s assessment of an individual’s overall level
of functioning. An individual’s GAF is rated between 0-100, with lower numbers
indicating more severe mental impairments. A GAF score between 51 and 60 indicates
moderate symptoms or moderate difficulty in social, occupational, or school functioning.
A recent update of the DSM eliminated the GAF scale because of “its conceptual lack of
clarity . . . and questionable psychometrics in routine practice.” See Diagnostic and
Statistical Manual of Mental Disorders (DSM-5) at 16 (American Psychiatric Ass’n, 5th
ed., 2013).
6
deficits across all areas. (Id.) Dr. Gremelspacher observed Gannon was tearful over these
results. (Id.)
Gannon saw Dr. Gremelspacher again on July 15, 2014, reporting she had a case manager
who was assisting her with paperwork. (Tr. 688.) Dr. Gremelspacher noted Gannon “seems
oriented but repeats same story as last visit” and her “discourse gets very tangential and she can
get upset when speaking of a sad memory.” (Id.)
On July 18, 2014, Gannon visited the UPMS Sports Concussion Center for an evaluation
with Shailen Woods, M.D. (Tr. 658.) Gannon reported dizziness, headaches, mood changes,
and poor sleep. (Id.) Dr. Woods referred Gannon to a neuropsychologist and to vestibular
rehabilitation. (Tr. 659.) That same date, Gannon visited the emergency room after jamming her
foot into a couch. (Tr. 1348.) The emergency room physicians “buddy taped” her toes and
provided her with a post-operative shoe. (Tr. 1351.)
Gannon followed up with Dr. Cotugno on July 22, 2014, reporting her headaches were
responding to medication. (Tr. 704.) Dr. Cotugno prescribed Ambian and Topamax. (Tr. 705.)
Gannon then saw Dr. Urrea on July 28, 2014, and received a score of 12/30 on an MMSE, again
displaying deficits across all areas. (Tr. 686.) Dr. Urrea concluded Gannon had a major
cognitive impairment due to trauma. (Id.)
On August 12, 2014, Gannon had a treatment plan review with Dr. Gremelspacher. (Tr.
1091.) She underwent another MMSE, and scored a 12/20. (Id.) Dr. Gremelspacher noted
Gannon “was found to have significant cognitive impairment due to trauma” and recommended
Gannon receive supportive therapy. (Id.)
7
On September 10, 2014, Gannon visited the emergency room after tripping and falling
onto her right elbow. (Tr. 1339.) X-rays revealed a fracture in her right orbital bone and a
nondisplaced fracture in her right elbow. (Tr. 1342, 1345.) A CT scan of her brain indicated
progressing focal atrophy or posttraumatic encophalmalacia and mild demyelinating changes
involving the periventricular white matter. (Tr. 1344.) She required hospitalization for four
days. (Tr. 987, 684.)
Gannon returned to Dr. Gremelspacher on September 25, 2014, reporting she may have
passed out when she fell and broke her elbow. (Tr. 684.) She also reported she had a close
friend who was monitoring her daily. (Id.) Dr. Gremelspacher noted while Gannon was able to
describe her accident, it was with “lots of tangents” and “hysteric.” (Id.) Gannnon also revealed
she had appointed a guardian and had continued headaches, dizziness, and episodes of crying.
(Id.)
On September 29, 2014, Dr. Urrea filled out a “Mental Residual Function Capacity
Statement” prepared by Gannon’s attorney. (Tr. 697-700.) He listed her diagnosis as “dementia,
organic in origin” and her prognosis as “continued deterioration.” (Tr. 697.) With respect to
Gannon’s particular limitations, Dr. Urrea found the following:
C
She would be precluded for 15% or more of an 8-hour workday in
her abilities to:
C
C
C
C
C
C
remember locations and work-like procedures;
understand and remember detailed instructions;
carry out detailed instructions;
make simple work-related decisions;
complete a normal workday and workweek without
interruptions from psychologically based symptoms, and
perform at a consistent pace without an unreasonable number
and length of rest periods;
be aware of normal hazards and take appropriate precautions;
8
C
C
C
She would be precluded for 10% of an 8-hour workday in her
abilities to:
C
C
C
C
C
C
C
C
use public transportation; and
set goals and make plans independently of others.
understand and remember very short and simple instructions;
carry out very short and simple instructions;
maintain attention and concentration for extended periods of
time;
perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances;
work in coordination with or in proximity to others without
being distracted by them;
interact appropriately with the general public; and
respond appropriately to changes in the work setting.
She would be precluded for 5% of an 8-hour workday in her
abilities to:
C
C
C
C
C
sustain an ordinary routine without special supervision;
ask simple questions and request assistance;
accept instructions and respond appropriately to criticism
from supervisors;
get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; and
maintain socially appropriate behavior, and to adhere to basic
standards of neatness and cleanliness.
(Tr. 698-699.) Dr. Urrea characterized Gannon as “severely impaired” and concluded she would
not be able to work in a competitive work setting on a full-time basis for at least six months or be
able to manage benefit payments. (Tr. 700.)
On October 2, 2014, Gannon visited Dr. Cotugno, reporting dizziness, impaired sleep,
and poor memory. (Tr. 701.) Dr. Cotugno prescribed Lamictal, Cymbalta, Ambian, and
Anaprox. (Tr. 702.)
Gannon saw Dr. Gremelspacher on October 21, 2014, reporting she had a home
healthcare nurse and was in the process of obtaining a hospital bed and an aide to assist her with
9
housework. (Tr. 1087.) Dr. Gremelspacher noted Gannon presented in “a disorganized
fashion,” was “very dramatic,” and “almost hysteric.” (Id.)
On November 24, 2014, Gannon visited Dr. Urrea, reporting she was doing well. (Tr.
1086.) She complained of depressive symptoms, but denied suicidal ideation. (Id.) On
examination, she had a constricted affect, but normal concentration, memory, insight, and
judgment. (Id.)
On December 1, 2014, Gannon reported her September fall to Dr. Cotugno. (Tr. 903.)
She indicated she had been waking up with numbness in both arms. (Id.) On examination, her
upper extremity strength was normal. (Tr. 904.) Dr. Cotugno referred Gannon for vestibular
therapy, ordered an EMG for both arms, and increased Gannon’s Cymbalta dosage. (Tr. 905.)
Gannon had treatment plan review with Dr. Gremelspacher on December 12, 2014. (Tr.
1082.) Dr. Gremelspacher noted Gannon’s most recent MMSE score was a 12/20 and had
“attended supportive therapy but is unable to remember goals.” (Id.) Dr. Gremelspacher
observed Gannon was receiving “extensive home support” and was “unable to communicate
without preservation and tangents.” (Id.)
On December 17, 2014, Kelly Smith, a service coordinator at the Pennsylvania
Department of Public Welfare, determined Gannon required a personal assistant services worker
“with her in the morning and throughout the day as well as the evening to ensure she is eating
and taking her medications as prescribed.” (Tr. 1172.) Ms. Smith also noted Gannon “is a fall
risk and needs to be monitored during the time she is taking a shower” and when Gannon was
out in public “it is important to monitor [her] in the event a seizure erupts due to stimuli.” (Id.)
10
On January 8, 2015, Gannon reported to Dr. Gremelspacher she had been seeing a
psychoneurologist, but had missed several appointments over the holidays and was “fired.” (Tr.
1080.) She also indicated she had been approved for in-home services and an electric lift chair.
(Id.) She explained she would receive 42 hours of assistance a week, non medical transport
services, and an emergency button. (Id.) Dr. Gremelspacher noted despite the approval of these
services, Gannon was “very pessimistic and reluctant to be happy about any relief she is going to
receive.” (Id.) One examination, Gannon displayed poor insight and a blunted tone. (Id.)
Gannon saw Dr. Cotugno on January 12, 2015, reporting poor sleep and numbness in her
arms. (Tr. 900.) On examination, she had normal upper extremity strength. (Tr. 901.) Dr.
Cotugno reduced Gannon’s Lamictal dosage and prescribed Lyrica. (Id.)
On January 26, 2015, Gannon presented to the emergency room with shortness of breath
and chest pain. (Tr. 1333.) She reported a possible loss of consciousness several days prior as
well. (Id.) The emergency room doctors determined Gannon had a rib fracture. (Tr. 977.) Dr.
Arora ordered an updated x-ray of her ribs on January 29, 2015. (Tr. 980.)
On February 3, 2015, Gannon initially saw nurse practitioner Kristen Graziano, DNP,
CRNP, for a psychiatric evaluation. (Tr. 924.) She could not recall the details of her golf cart
accident, but reported she had been struggling with dizziness, balance issues, repeated falls
resulting in broken bones, “black outs,” daily headaches, back pain, mood swings, forgetfulness,
and poor short term memory since the accident. (Id.) On evaluation, Gannon was restless and
went “off on tangents frequently.” (Tr. 925.) She required frequent redirection and her speech
was slightly rapid. (Id.) She had normal eye contact with no psychotic symptoms. (Id.) Her
thought processes and thought contents were tangential and she displayed poor short and long
11
term memory. (Id.) Ms. Graziano observed Gannon’s intellect was average and her insight and
judgment were fair. (Id.) She diagnosed organic mood disorder, moderate major depression,
cognitive disorder, intracranial hemorrhage, and post-concussion syndrome. (Id.) She
prescribed Melatonin and Cymbalta. (Id.)
Gannon visited Dr. Gremelspacher on February 5, 2015, reporting she was unsure if she
tripped or had passed out when she had broken her rib. (Tr. 1078.) Dr. Gremelspacher noted
Gannon was fidgety, displayed inappropriate laughter, and attempted “to play peek a boo” when
she arrived for her appointment. (Id.)
On February 24, 2015, Gannon visited Ms. Graziano, reporting poor sleep but improved
anxiety. (Tr. 919.) Gannon then saw Dr. Urrea on February 27, 2015, indicating she was very
depressed and could not sleep. (Tr. 1077.) She reported her Cymbalta was ineffective and Dr.
Urrea advised her he would address her dosage with her neuropsychiatrist. (Id.)
Gannon returned to Ms. Graziano on April 21, 2015, reporting a stable mood and no
suicidal ideation. (Tr. 919.) On examination, she exhibited a fair mood with normal eye contact,
but was somewhat restless with a tangential thought process. (Tr. 920.) She continued to
display poor short and long term memory. (Id.)
On April 22, 2015, Gannon visited Dr. Cotugno, reporting headaches three times a week.
(Tr. 892.) Her motor examination was normal. (Tr. 893.) Dr. Cotugno determined Gannon was
a good candidate for Botox headache therapy. (Tr. 894.)
On May 19, 2015, Ms. Granziano noted Gannon’s mood had improved on Cymbalta and
her Melatonin improved her sleep. (Tr. 916.) She observed Gannon was “in better spirits” and
calmer. (Tr. 917.) Gannon’s thought processes and thought contents were normal. (Id.)
12
Gannon saw Dr. Cotugno again on May 22, 2015, and indicated last seizure occurred in
November 2014. (Tr. 889.) On examination, she had a normal gait and normal upper extremity
strength. (Tr. 890.) Dr. Cotugno observed Gannon had failed multiple headache medications
and again recommended Botox therapy. (Tr. 891.) Gannon subsequently underwent a round of
Botox injections and reported excellent improvement. (Tr. 885.)
On May 29, 2015, Gannon visited Dr. Urrea and reported impaired sleep, depression, and
anxiety. (Tr. 1076.) Her memory, concentration, insight, and judgment were all normal on
examination, but her affect was blunted and her mood dysphoric. (Id.) Dr. Urrea prescribed
Remeron. (Id.)
Gannon returned to Ms. Graziano on July 18, 2015, reporting a stable mood. (Tr. 914.)
She indicated her home health care services were going well. (Id.) She described intermittent
anxiety, but improving coping skills and sleep. (Id.) Gannon’s memory was intact and her
judgment and insight were appropriate. (Tr. 915.)
Gannon followed up with Dr. Urrea on July 24, 2015, indicating no improvement on
Remeron. (Tr. 1073.) She described several external stressors and reported her Cymbalta was
providing some benefit. (Id.) Gannon saw Ms. Graziano on September 18, 2015, reporting a
stable mood and fair sleep. (Tr. 912.) Her eye contact, thought processes, and thought contents
were all normal. (Id.) Her memory was intact. (Id.)
On September 28, 2015, the Pennsylvania Department of Public Welfare authorized
Gannon to receive personal assistant services for 42 hours a week. (Tr. 1150.) Her diagnosis on
the authorization was listed as head trauma and she was noted to be “a severe fall risk” with
“high levels of anxiety” and “extreme[ly] nervous.” (Id.) The authorization form noted Gannon
13
would need assistance with, among other things, bathing, hair care, dressing, meal preparation,
eating, laundry, light housekeeping, shopping, medication management, reading, managing
finances, securing transportation, appointment scheduling, and supervised walks. (Tr. 1151.)
The following day, on September 29, 2015, the EMS brought Gannon into the emergency
room, after being found outside in the rain. (Tr. 1304.) She reported she had gotten into an
argument with her boyfriend over her substance use and went outside and sat in the rain. (Id.)
Her toxicology was positive for cocaine and alcohol. (Tr. 1306.) A head CT scan revealed posttraumatic encephalomalacic changes in the front lobes, remote skull fractures, but no acute
intracranial hemorrhage. (Tr. 1300.) The emergency room staff provided her with IV fluids.
(Tr. 1371.) Once sober, she was confused, but no longer combative. (Id.) The Pennsylvania
Department of Public Welfare subsequently increased her authorized personal assistance services
to 57 hours a week on October 9, 2015. (Tr. 1148.)
Gannon presented to Dr. Gremelspacher on October 20, 2015, as agitated, reporting she
was waiting to receive a special chair for her dizzy spells and back pain. (Tr. 1074.) Dr.
Gremelspacher noted Gannon had an aid who was assisting her at home, as well as a case
manager. (Id.)
On November 6, 2015, Gannon visited Ms. Graziano, reporting she was “doing fairly
well,” but had occasional anxiety. (Tr. 907.) Gannon saw Dr. Urrea a few days later, on
November 13, 2015, reporting continued headaches and poor short term memory. (Tr. 1072.)
Dr. Urrea noted while Gannon was stable on her medications, she had poor sleep. (Id.)
Gannon returned to Dr. Cotugno on November 20, 2015 for another round of Botox
injections. (Tr. 880, 881.) She reported she was again having more than 15 headaches each
14
month. (Tr. 880.) Dr. Cotugno administered the Botox injections, noting Gannon had “excellent
improvement” with the injections. (Tr. 881, 882.)
On December 13, 2015, the Pennsylvania Department of Public Welfare again increased
Gannon’s authorized hours of home care, as she “had a [traumatic brain injury] and her current
behavior changes have increased.” (Tr. 1165.) Her behaviors were noted to “range from
aggression, memory loss, anxiety, agitation, and depression,” especially when she combined
alcohol with her medications. (Id.) The Department staff noted Gannon required “a great deal
of support at this present time.” (Id.)
Gannon visited Dr. Gremelspacher on December 15, 2015, reporting she had taken food
to several shut-ins and she and her caregiver had decorated her home. (Tr. 1070.) Gannon also
revealed she was currently facing eviction, as other tenants had called the police on her for
stamping on the floor. (Id.) Dr. Gremelspacher observed Gannon was “somewhat manic on the
subject of her eviction,” but found her behavior understandable. (Id.)
On January 14, 2016, Gannon followed up with Ms. Graziano, reporting pain, situational
stressors, and her eviction. (Tr. 907.) On examination, Gannon was “somewhat on edge,” but
her memory was intact and her thought processes and contents were normal. (Tr. 908.)
On February 11, 2016, Gannon presented to the emergency room for altered mental
status, after neighbors had found her naked on the floor. (Tr. 1288.) The emergency room staff
noted she smelled of alcohol and had slurred speech. (Id.) Gannon also repeatedly attempted to
remove her clothing in the emergency room department. (Id.) A CT scan of her brain revealed
no abnormalities. (Tr. 1291.) The next day, Gannon followed up with physicians’ assistant
Joseph Kadkick, PA-C, at Dr. Urrea’s office. (Tr. 1069.) She denied any significant depressive
15
symptoms, but her memory was abnormal on examination, with poor recall. (Id.) Gannon’s
concentration, insight, and judgment were all adequate. (Id.) Mr. Kadkick prescribed Visteril.
(Id.)
On February 16, 2016, Gannon underwent a psychotherapy session with Deborah
Foringer. (Tr. 1067.) She reported becoming a “completely different person” since her golf cart
accident, noting she had once worked as a caregiver, but now needed one herself. (Id.) During
the session, Ms. Foringer observed Gannon had no impulse control, Gannon began to yell and
pound her fist on the desk and stand up and start yelling “in the middle of a sentence.” (Id.) Ms.
Foringer recommended Gannon undergo cognitive behavioral therapy to decrease her depression
and improve her impulse control. (Id.)
About a week later, on February 23, 2016, the EMS brought Gannon to the emergency
room, after she was found on the roadside by strangers, bleeding from the back of her head. (Tr.
1284.) She was intoxicated upon arrival and the emergency room staff encouraged her to seek
help for alcohol abuse. (Tr. 1284, 1287.) Upon discharge, the emergency room physicians noted
Gannon was “very oriented” but “still could not recall exactly what lead up to her being found
on the road.” (Tr. 1287.)
On February 25, 2016, Ms. Smith at the Pennsylvania Department of Public Welfare
noted Gannon had “two occurrences where she had black outs after leaving her home at night
and walking out into the neighborhood” and “was found passed out on the sidewalk and in the
grass and required medical attention.” (Tr. 1173.) Ms. Smith recommended Gannon begin to
receive 24-hour care until June 2016, at which time Gannon’s needs would be re-assessed. (Id.)
16
Gannon followed up with Ms. Graziano on March 21, 2016, reporting various stressors,
but improved sleep. (Tr. 1363.) On examination, Gannon’s thought process and thought
contents were normal, and her memory was intact. (Tr. 1364.)
A few days later, on March 23, 2016, Gannon visited the emergency room after falling
down steps. (Tr. 1260.) Her neurological examination was normal. (Tr. 1262.) Her drug screen
was positive for alcohol, opiates, and cocaine and her CT scan was negative for an acute
intracranial hemorrhage. (Tr. 1264.)
On April 14, 2016, Ms. Graziano filled out a “Mental Residual Function Capacity
Statement” prepared by Gannon’s attorney. (Tr. 1366-1369.) She listed Gannon’s diagnoses as
organic mood disorder and cognitive disorder and noted her prognosis was “fair – current
symptoms likely life-long.” (Tr. 1366.) She assessed a GAF score range of 40-45. (Id.) With
respect to Gannon’s particular limitations, Ms. Graziano found the following:
C
She would be precluded for 15% or more of an 8-hour workday in
her abilities to:
C
C
C
C
C
C
C
C
C
C
understand and remember detailed instructions;
carry out detailed instructions;
maintain attention and concentration for extended periods;
work in coordination with or in proximity to others without
being distracted by them;
complete a normal workday and workweek without
interruptions from psychologically based symptoms, and
perform at a consistent pace without an unreasonable number
and length of rest periods;
accept instructions and respond appropriately to criticism from
supervisors;
get along with coworkers or peers without distracting them or
exhibiting behavioral extremes;
respond appropriately to changes in the work setting;
travel in unfamiliar places or use public transportation; and
set realistic goals or make plans independently of others.
17
C
She would be precluded for 10% of an 8-hour workday in her
abilities to:
C
C
C
C
C
C
C
C
C
C
remember locations and work-like procedures;
understand and remember very short and simple instructions;
carry out very short and simple instructions;
perform activities within a schedule, maintain regular
attendance, and be punctual and within customary tolerances;
sustain an ordinary routine without special supervision;
make simple work-related decisions;
interact appropriately with the general public;
ask simple questions and request assistance;
maintain socially appropriate behavior, and to adhere to basic
standards of neatness and cleanliness; and
be aware of normal hazards and take appropriate precautions.
(Tr. 1367-1368.) Ms. Graziano also opined Gannon would be “off task” more than 30% of the
workday, absent from work 5 days or more per month and be unable to complete an 8-hour workday
for 5 days or more per month. (Tr. 1368.) She concluded Gannon would be unable to work in a
competitive setting on a full-time basis for a continuous period of 6 months or manage any benefit
payments. (Tr. 1369.)
2.
Physical Impairments
Gannon visited ear, nose, and throat specialist Edward Stafford, M.D., on February 13, 2014.
(Tr. 457.) She reported ringing in her left ear, dizziness, and no sense of taste or smell since her
golf cart accident. (Id.) On examination, her hearing testing was normal. (Tr. 460-461.) Dr.
Stafford noted some debris in her ear and provided her with a topical treatment. (Tr. 461.) Gannon
returned to Dr. Stafford on March 6, 2014, reporting she was no longer dizzy, but was still having
ringing in her ear. (Tr. 510.) Dr. Stafford removed impacted ear wax in Gannon’s left ear. (Tr.
512.)
18
On May 20, 2014, Gannon visited the emergency room for ankle pain after a wheelchair ran
into her. (Tr. 1357.) The emergency room physicians provided her with crutches and oxycodone.
(Tr. 1360.)
On January 14, 2015, Gannon consulted with pain medicine specialist Matthew LoDico,
M.D., for lumbar spine. (Tr. 857.) An x-ray revealed degenerative disc disease. (Id.) On
examination, Gannon exhibited no overt pain behaviors, but she did rise from the seated position
very slowly and her gait was antalgic. (Tr. 858.) She did not heel or toe walk secondary to
dizziness. (Id.) Her leg strength was measured at 4/5 and she had tenderness in her back. (Id.) Dr.
LoDico ordered a lumbar MRI, an EMG, and prescribed Mobic for pain control. (Id.)
On February 16, 2015, Gannon consulted with orthopedist Patrick McCulloch, M.D.,
regarding her upper extremity numbness. (Tr. 1403.) She reported improved range of motion in her
fractured right elbow, but numbness in her left hand. (Id.) EMGs confirmed bilateral cubital tunnel
syndrome and left carpal tunnel syndrome. (Tr. 1404.) Dr. McCulloch recommended surgery and
Gannon underwent a left carpal tunnel release procedure on March 3, 2015. (Id.)
Gannon then consulted with pain management physician Richard Plowey, M.D., on February
18, 2015. (Tr. 854.) She reported back pain radiating down her legs. (Id.) Dr. Plowly reviewed her
lumbar MRI, which confirmed multilevel degenerative changes and varying degrees of stenosis at
multiple levels. (Id.) On examination, Gannon rose from the seated position very slowly and had
an antalgic gait. (Id.) She had slightly decreased strength in her legs and was tender to palpation
across her back. (Id.) Dr. Plowey recommended Gannon undergo epidural steroid injections. (Id.)
On March 13, 2015, Gannon visited infectious disease specialist Philip Joson, M.D.,
regarding her recent labwork which confirmed a positive Hepatitis C antibody. (Tr. 877.) Dr. Joson
19
ordered liver function testing and an ultrasound. (Tr. 878.) Gannon returned to Dr. Joson on May 8,
2015. (Tr. 873.) Her ultrasound revealed a mild fatty liver and her liver function testing was
normal. (Id.) Dr. Joson advised Gannon she was a candidate for Hepatitis C treatment and ordered
additional testing. (Id.)
On April 28, 2015, Gannon visited Dr. Arora for medication renewals. (Tr. 972.) Her
physical examination was normal, beyond some wheezing. (Tr. 974.) Dr. Arora ordered pulmonary
function testing. (Tr. 975.) Gannon followed up with Dr. Arora to discuss her pulmonary function
testing results on May 29, 2015. (Tr. 1232.) Dr. Arora diagnosed her with chronic obstructive
pulmonary disease (“COPD”) and recommended Gannon quit smoking. (Tr. 1230, 1232.) Gannon
indicated she was attempting to quit and reported occasionally wheezing with exertion. (Tr. 1230.)
Gannon visited Dr. Josen on June 18, 2015 for her Hepatitis C. (Tr. 871.) Because
Gannon’s drug and alcohol screen was negative, Dr. Josen advised her after one additional test she
could start Hepatitis C treatment. (Id.)
On July 21, 2015, Gannon followed up with Dr. McCullough for her left arm and hand. (Tr.
1389.) On examination, her surgical incision had healed and Gannon denied any numbness or
tingling. (Id.) Dr. McCullough measured her strength as 45 pounds bilaterally. (Id.) Gannon then
underwent a right-sided carpal tunnel release. (Tr. 1313.) She did subsequently develop a minor
infection of her surgical incision. (Id.)
On August 21, 2015, Gannon had a normal physical examination with Dr. Arora. (Tr. 965.)
Dr. Arora prescribed Gannon an inhaler for her COPD and referred her for a colonoscopy. (Id.)
Gannon followed up with Dr. McCullough on February 24, 2016, indicating that while her
wrists were no longer bothering her, her right elbow pain persisted. (Tr. 1370.) On examination,
20
Gannon’s right arm strength was decreased and she had tenderness around the elbow. (Tr. 1371.)
X-rays revealed significant osteoarthritis. (Id.) Dr. McCullough administered an injection, but was
hesitant to recommend surgery due to the possible complications. (Id.) He encouraged her to seek a
second opinion. (Id.)
Gannon then sought out a second opinion from orthopedist Christopher Schmidt, M.D., on
February 25, 2015. (Tr. 1110.) On examination, Gannon had a limited range of motion in her neck
and right elbow. (Tr. 1111.) Dr. Schmidt reviewed her right elbow x-rays and recommended an
elbow replacement. (Id.) Gannon underwent this procedure on March 7, 2016. (Tr. 1014.)
Four days following her procedure, on March 11, 2016, Gannon presented to the emergency
room, reporting blood at her surgical site and increasing pain. (Tr. 1272.) An ultrasound of her
right arm revealed an occlusion in a central brachial vein. (Tr. 1274.) She was treated with
anticoagulant medications. (Tr. 1275.)
C.
State Agency Reports
1.
Mental Impairments
On June 3, 2014, state agency psychologist Kerry Brace, Psy.D., reviewed Gannon’s
medical records and completed a Psychiatric Review Technique (“PRT”). (Tr. 82-83.) Dr. Brace
concluded Gannon had (1) moderate restrictions in activities of daily living; (2) moderate
difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration,
persistence, or pace; and (4) no episodes of decompensation. (Tr. 82.) Dr. Brace also filled out a
Mental Residual Functional Capacity (“RFC”) Assessment, in which she concluded Gannon was
markedly limited in her abilities to (1) understand and remember detailed instructions; (2) carry out
detailed instructions; and (3) interact appropriately with the general public. (Tr. 86-88.) Dr. Brace
21
found Gannon was moderately limited in her abilities to (1) understand and remember very short
and simple instructions; (2) carry out very short and simple instructions; (3) maintain attention and
concentration for extended periods; (4) work in coordination with or in proximity to others without
being distracted by them; (5) accept instructions and respond appropriately to criticism from
supervisors; (6) get along with coworkers or peers without distracting them or exhibiting behavioral
extremes; (7) maintain socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness; (8) respond appropriately to changes in the work setting; (9) travel in unfamiliar
places or use public transportation; and (10) set realistic goals or make plans independently of
others. (Id.) Dr. Brace found Gannon was not significantly limited in her abilities to (1) remember
locations and work-like procedures; (2) perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; (3) sustain an ordinary routine without
special supervision; (4) make simple work-related decisions; (5) complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; (6) ask simple questions
or request assistance; and (7) be aware of normal hazards and take appropriate precautions. (Id.)
Dr. Brace explained the basis of her decision as follows:
The claimant can understand and retain simple work instructions.
***
The claimant is able to carry out simple work instructions and sustain an ordinary
routine without special supervision.
***
The claimant is able to function adequately in settings not involving much
interpersonal interaction.
22
***
The claimant can function in settings not involving high levels of work pressure
or frequent changes in routine.
***
The claimant is able to meet the basic mental demands of competitive work on a
sustained basis despite the limitations resulting from her impairments.
(Tr. 87-88.)
2.
Physical Impairments
On June 13, 2014, state agency physician Gregory P. Mortimer, M.D., reviewed Gannon’s
medical records and completed a Physical Residual Functional Capacity (“RFC”) Assessment. (Tr.
84-86.) Dr. Mortimer determined Gannon could lift and carry 20 pounds occasionally and 10
pounds frequently; stand and/or walk for about 6 hours in an 8-hour workday; and sit for about 6
hours in an 8-hour workday. (Tr. 84.) He further found Gannon could occasionally climb ramps
and stairs, but never ladders, ropes, or scaffolds. (Tr. 84-85.) He opined Gannon could
occasionally balance, stoop, kneel, crouch, and crawl and could need to avoid even moderate
exposure to hazards. (Tr. 85-86.)
D.
Hearing Testimony
During the April 12, 2016 hearing, Gannon testified to the following:
C
She suffered a head injury in September 2013 when she fell out of a golf cart and
another golf cart ran over her head. (Tr. 41-42.) She was life flighted to a hospital
for care. (Id.)
•
She lives alone in a ground floor apartment. (Tr. 43.) She has two children. (Id.)
She does not drive and has not driven since her accident. (Tr. 44.) She has had a
case manager for several years. (Id.) She depends on her caregivers to take her to
all of her appointments. (Tr. 55.)
23
•
She has an 11th grade education. (Tr. 45.) Prior to her accident, she was a care
giver, and would help her clients with personal hygiene and cooking. (Id.)
•
She has poor concentration and memory and is “not the same person [she] was
before this accident.” (Tr. 46.) She has migraine headaches and has been
receiving Botox injections for her migraines. (Tr. 48.) These injections only
relieve her symptoms for 1-2 weeks. (Tr. 49.)
•
She has had a “few” seizures, the most recent occurring three weeks prior. (Tr.
49.) She was taken to the emergency room for care, but does not remember the
ambulance ride. (Tr. 51.) She has poor sleep and dizzy spells. (Tr. 61.) She has
“passed out” about twelve times since September 2013. (Tr. 62.)
•
She slipped and fell down stairs and broke her elbow. (Tr. 46-47.) She recently
underwent an “elbow replacement” and continues to have trouble lifting her arm
up and is in pain. (Tr. 46.)
•
She has caregivers assisting her 42 hours a week. (Tr. 55.) She has one that
comes in the morning, another in the evening, and her service coordinator recently
requested more hours “because she feels that the care is needed for [her].” (Id.)
•
She has arthritis “everywhere.” (Tr. 63.) She also has breathing problems and
uses a nebulizer. (Tr. 67.)
The VE testified Gannon had past work as a home health aide. (Tr. 69.) The ALJ then
posed the following hypothetical question:
Very well. Please consider a hypothetical individual the claimant’s same
age, education and work history who has the residual functional capacity to
perform light3 work as defined by the regulations with the following other
3
“Light work” is defined as follows: “Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you must
have the ability to do substantially all of these activities.” 20 CFR § 404.1567(b).
Social Security Ruling 83–10 clarifies that “since frequent lifting or carrying
requires being on one's feet up to two-thirds of a workday, the full range of light
work requires standing or walking, off or on, for a total of approximately six
hours of an 8–hour workday.” SSR 83–10, 1983 WL 31251 (1983).
24
limits. This individual requires the opportunity to alternate sitting and
standing every 30 minutes and occasionally climb ramps and stairs but never
ladders, ropes, or scaffolds. Can occasionally balance, stoop, kneel, crouch
but never crawl. Must avoid concentrated exposures to extremes of heat,
cold, wetness, humidity and vibration, environmental irritants such as fumes,
odors, dust, gases and areas of poor ventilation as well as hazards such as
inherently dangerous moving machinery and unprotected heights.
(Tr. 70.)
The VE testified the hypothetical individual would not be able to perform Gannon’s past
work as a home health aide. (Id.) The VE further explained the hypothetical individual would be
able to perform other representative jobs in the economy, such as officer helper (D.O.T. #239.567010); information clerk (D.O.T. #237.367-018); and marker (D.O.T. #781.687-042). (Tr. 71.) The
ALJ then inquired if an individual who was limited to “frequent handling and fingering bilaterally”
would be able to perform these positions. (Id.) The VE testified a hypothetical individual would
be able to perform these positions with that particular limitation. (Id.)
III.
STANDARD FOR DISABILITY
A disabled claimant may be entitled to receive SSI benefits. 20 C.F.R. § 416.905; Kirk v.
Sec’y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a claimant
must meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and 416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a
five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See also Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
First, the claimant must demonstrate that she is not currently engaged in “substantial gainful
activity” at the time of the disability application. 20 C.F.R. §§ 404.1520(b) and 416.920(b).
Second, the claimant must show that she suffers from a “severe impairment” in order to warrant a
25
finding of disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905 F.2d at
923. Third, if the claimant is not performing substantial gainful activity, has a severe impairment
that is expected to last for at least twelve months, and the impairment, or combination of
impairments, meets or medically equals a required listing under 20 CFR Part 404, Subpart P,
Appendix 1, the claimant is presumed to be disabled regardless of age, education or work
experience. See 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant’s impairment or
combination of impairments does not prevent her from doing her past relevant work, the claimant is
not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if
the claimant’s impairment does prevent him from doing his past relevant work, if other work exists
in the national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant has not engaged in substantial gainful activity since the alleged
onset date (20 CFR 416.971 et seq.).
2.
Since the alleged onset date of disability, September 14, 2013, the claimant has
had the following severe impairments: traumatic brain injury; right total elbow
arthroplasty; depression; and migraines (20 CFR 416.920(c)).
3.
Since the alleged onset date of disability, September 14, 2013, the claimant has
not had an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4.
After careful consideration of the entire record, the undersigned finds that since
September 14, 2013, the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 416.967(b), except that she requires the
opportunity to alternate between sitting and standing every thirty minutes. The
26
claimant can occasionally climb ramps and stairs, but she can never climb
ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, and
crouch, but she can never crawl. The claimant must avoid concentrated exposure
to extreme heat, cold, wetness, humidity, vibration, as well as hazards such as
inherently dangerous moving machinery and unprotected heights. The claimant
is limited to frequent handling and fingering bilaterally. Finally she is limited to
unskilled work, with a specific vocational preparation (SVP) of one to two,
involving routine and repetitive tasks.
5.
Since September 14, 2013, the claimant has been unable to perform any past
relevant work (20 CFR 416.965).
6.
Prior to the established disability onset date, the claimant was an individual
closely approaching advanced age. On November **, 2015, the claimant’s age
category changed to an individual of advanced age (20 CFR 416.963).
7.
The claimant has a limited education and is able to communicate in English (20
CFR 416.964).
8.
Prior to November **, 2015, transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled” whether or not
the claimant has transferable job skills. Beginning on November **, 2015, the
claimant has not been able to transfer job skills to other occupations (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
9.
Prior to November **, 2015, the date the claimant’s age category changed,
considering the claimant’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the
national economy that the claimant could have performed (20 CFR 416.969 and
416.969a).
10.
Beginning on November **, 2015, the date the claimant’s age category changed,
considering the claimant’s age, education, work experience, and residual
functional capacity, there are no jobs that exist in significant numbers in the
national economy that the claimant could perform (20 CFR 416.960(c) and
416.966).
11.
The claimant was not disabled prior to November **, 2015, but became disabled
on that date and has continued to be disabled through the date of this decision (20
CFR 416.920(g)).
12.
The claimant’s substance use disorder(s) is not a contributing factor material to
the determination of disability (20 CFR 416.935).
27
(Tr. 13-26.)
V. STANDARD OF REVIEW
“The Social Security Act authorizes narrow judicial review of the final decision of the
Social Security Administration (SSA).” Reynolds v. Comm’r of Soc. Sec., 2011 WL 1228165 at * 2
(6th Cir. April 1, 2011). Specifically, this Court’s review is limited to determining whether the
Commissioner’s decision is supported by substantial evidence and was made pursuant to proper
legal standards. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v.
Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial evidence has been defined as
“‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health and Human Servs., 25
F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ’s findings are supported by
substantial evidence, the Court does not review the evidence de novo, make credibility
determinations, or weigh the evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d
679, 681 (6th Cir. 1989).
Review of the Commissioner’s decision must be based on the record as a whole. Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not
subject to reversal, however, merely because there exists in the record substantial evidence to
support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6th Cir. 2001) (citing
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm’r of Soc. Sec., 203
F.3d 388, 389-90 (6th Cir. 1999)(“Even if the evidence could also support another conclusion, the
decision of the Administrative Law Judge must stand if the evidence could reasonably support the
conclusion reached.”) This is so because there is a “zone of choice” within which the
28
Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner’s decision was supported by
substantial evidence, the Court must determine whether proper legal standards were applied.
Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations
is grounds for reversal. See, e.g.,White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009);
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by
substantial evidence, however, a decision of the Commissioner will not be upheld
where the SSA fails to follow its own regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial right.”).
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence
in the record to support the decision, [where] the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp.
2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996); accord
Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not
mentioned, the Court cannot determine if it was discounted or merely overlooked.”); McHugh v.
Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, 2010 WL 2837260 (E.D.
Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9, 2010).
VI. ANALYSIS
A.
Medical Opinion Evidence
In her first assignment of error, Gannon argues the ALJ failed to properly evaluate the
findings and opinions of her treating sources, Dr. Urrea and Ms. Graziano. (Doc. No. 15 at 13.)
29
She “disputes the ALJ’s characterization of her treatment as ‘routine and conservative’” and takes
issue with the ALJ’s use of one treatment note and a single MMSE score when to discount the
treating sources’ opinions. (Id. at 16, 17.) Gannon argues “the ALJ’s assertion that she improved
in 2015 and 2016 is simply unsupported,” given her increased need for in-home health services and
cognitive behavioral therapy. (Id. at 18.) Finally, Gannon asserts the ALJ’s choice to assign
greater weight to the state agency physicians’ opinions “is patently unreasonable, and therefore not
supported by substantial evidence.” (Id.)
The Commissioner maintains the ALJ properly considered the opinions of Dr. Urrea and
Ms. Graziano. (Doc. No. 16 at 16.) She asserts the ALJ’s reasons for rejecting these opinions were
supported by the medical evidence of record, the selected treatment course, and Dr.
Gremelspacher’s April 2014 clinical findings. (Id. at 16, 17.) The Commissioner argues the
mental status examination findings contained in the record were “largely normal.” (Id. at 18.) She
submits Gannon’s “argument that the ALJ did not provide good reasons for discounting the
opinions ignores the ALJ’s exhaustive analysis of the record that preceded the ALJ’s analysis of
the opinions.” (Id. at 20.)
As the Sixth Circuit has explained, "‘[t]he Commissioner has elected to impose certain
standards on the treatment of medical source evidence.'" Gayheart v. Comm'r of Soc. Sec., 710
F.3d 365, 375 (6th Cir. 2013) (citing Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)). Medical
opinions are to be weighed by the process set forth in 20 C.F.R. § 404.1527(c), and "[t]he source of
the opinion . . . dictates the process by which the Commissioner accords it weight." Id. "As a
general matter, an opinion from a medical source who has examined a claimant is given more
weight than that from a source who has not performed an examination (a ‘nonexamining source'),
30
id. § 404.1502, 404.1527(c)(1), and an opinion from a medical source who regularly treats the
claimant (a ‘treating source') is afforded more weight than that from a source who has examined the
claimant but does not have an ongoing treatment relationship (a ‘nontreating source'), id. §
404.1502, 404.1527(c)(2)." Id. In other words, "[t]he regulations provide progressively more
rigorous tests for weighing opinions as the ties between the source of the opinion and the individual
become weaker." Soc. Sec. Rul. No. 96–6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2,
1996).4
As Dr. Urrea and Ms. Graziano are different types of treating sources, subject to different
bodies of applicable law, the Court will consider the ALJ’s treatment of these opinions separately,
below.
Dr. Urrea
A treating source opinion must be given "controlling weight" if such opinion (1) "is
well-supported by medically acceptable clinical and laboratory diagnostic techniques" and (2) "is
not inconsistent with the other substantial evidence in [the] case record." Gayheart v. Comm'r of
Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013); 20 C.F.R. § 404.1527(c)(2).5 However, "a finding
that a treating source medical opinion . . . is inconsistent with the other substantial evidence in the
case record means only that the opinion is not entitled to ‘controlling weight,' not that the opinion
should be rejected." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399 (6th Cir. 2009). Indeed,
4
SSR 96-6p was rescinded on March 27, 2017, but was in effect at the time of
Gannon’s administrative hearing. See SSR 17-2p, 2017 WL 3928306 at *1 (Soc.
Sec. Admin. Mar. 27, 2017).
5
Revised versions of these regulations took effect on March 27, 2017 and apply to
disability claims filed on or after that date. See 82 Fed. Reg. 5844 (March 27,
2017).
31
"[t]reating source medical opinions are still entitled to deference and must be weighed using all of
the factors provided in 20 C.F.R. § 404.1527 and 416.927." Blakley, 581 F.3d at 408.6 See also
Gayheart, 710 F.3d at 376 ("If the Commissioner does not give a treating-source opinion
controlling weight, then the opinion is weighed based on the length, frequency, nature, and extent
of the treatment relationship, id., as well as the treating source's area of specialty and the degree to
which the opinion is consistent with the record as a whole and is supported by relevant evidence,
id. § 404.1527(c)(2)-(6).")
If the ALJ determines a treating source opinion is not entitled to controlling weight, "the
ALJ must provide ‘good reasons' for discounting [the opinion], 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 v. Comm'r of Soc.
Sec., 486 F.3d 234, 242 (6th Cir. 2007). See also Gayheart, 710 F.3d at 376. The purpose of
this requirement is two-fold. First, a sufficiently clear explanation "‘let[s] claimants
understand the disposition of their cases,' particularly where a claimant knows that his
physician has deemed him disabled and therefore ‘might be bewildered when told by an
administrative bureaucracy that she is not, unless some reason for the agency's decision is
supplied.'" Id. (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)).
Second, the explanation "ensures that the ALJ applies the treating physician rule and permits
6
Pursuant to 20 C.F.R. § 404.1527(c)(2), when not assigning controlling weight to
a treating physician's opinion, the Commissioner should consider the length of the
relationship and frequency of examination, the nature and extent of the treatment
relationship, how well-supported the opinion is by medical signs and laboratory
findings, its consistency with the record as a whole, the treating source's
specialization, the source's familiarity with the Social Security program and
understanding of its evidentiary requirements, and the extent to which the source
is familiar with other information in the case record relevant to the decision.
32
meaningful appellate review of the ALJ's application of the rule." Wilson, 378 F.3d at 544.
Because of the significance of this requirement, the Sixth Circuit has held that the failure to
articulate "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.
Nevertheless, the opinion of a treating physician must be based on sufficient medical
data, and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d
431, 435 (6th Cir. 1985); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993); Blakley, 581
F.3d at 406. Moreover, the “treating physician rule” only applies to medical opinions. “If the
treating physician instead submits an opinion on an issue reserved to the Commissioner—such
as whether the claimant is disabled, unable to work, the claimant's RFC, or the application of
vocational factors— [the ALJ] decision need only ‘explain the consideration given to the
treating source's opinion.’” Johnson v. Comm'r of Soc. Sec., 535 Fed. App’x 498, 505 (6th
Cir. 2013). The opinion, however, “is not entitled to any particular weight.” Turner, 381 Fed.
App’x at 493. See also Curler v. Comm’r of Soc. Sec., 561 Fed. App’x 464, 471 (6th Cir.
2014).
Moreover, an ALJ must consider the findings and opinions of the state agency
medical consultants, because the "Federal or State agency medical or psychological
consultants are highly qualified and experts in Social Security disability evaluation.” 20
C.F.R. §404.1513a(b)(1). When doing so, an ALJ will evaluate the findings using the relevant
factors in §§ 404.1520b, 404.1520c and 404.1527, such as the consultant's medical specialty
and expertise, the supporting evidence in the case record, consistency of the consultant's
33
opinion with evidence from other sources in the record, supporting explanations the medical or
psychological consultant provides, and any other factors relevant to the weighing of the
opinions. 20 C.F.R. § 404.1513a(b)(2). Finally, an ALJ must explain in the decision the
weight given to the opinions of a State agency medical or psychological consultant unless a
treating physician's opinion has been accorded controlling weight. See 20 C.F.R §
404.1527(e).
The ALJ weighed the opinion evidence from Dr. Urrea and Ms. Graziano as follows:
In contrast, the undersigned accords little weight to the medical source
statements provided by Shelley L. Roisen,7 Ph.D., Dr. Urrea, and NP
Graziano in August 2014, September 2014, and April 2016 respectively.
Dr. Roisen, Dr. Urrea, and NP Graziano each opined that the claimant
had significant limitations in cognitive and social functioning that left her
unable to perform any work on a regular and continuous basis. Dr.
Roisen further provided the claimant had a current GAF score of 48 and
NP Graziano provided the claimant had a current GAF score of 40-45,
with GAF scores in the 40's indicative of extreme symptoms and
functional limitations. (See Exhibits 26F; 28F, 51F).
While Dr. Roisen, Dr. Urrea, and NP Graziano are treating sources, their
opinions are not supported by or consistent with the relatively routine and
conservative mental health treatment the claimant received. Their
opinions are also inconsistent with Dr. Gremelspacher’s clinical findings
from April 1, 2014, as well as the claimant’s reports of symptom
improvement in her psychological symptoms and the relatively normal
mental status examination findings of record from 2015 and 2016, as
described above. For these reasons, the undersigned accords little weight
to the medical source statements provided by Dr. Roisen, Dr. Urrea, and
NP Graziano.
7
As correctly noted by Gannon, Dr. Roisen is not her treating source. (See Doc.
No. 15 at 15.) Rather, it appears Dr. Roisen treated another individual, unrelated
to Gannon or her claim for benefits. (See Tr. 680-683.) Despite Gannon noting
this in her Brief, the Commissioner compounded the ALJ’s oversight by not only
including Dr. Roisen’s opinion in the transcript of this matter, but also including
it in her discussion of the evidence. (See Doc. No. 16 at 8.) The Court finds this
incredibly concerning, as the private medical record of an unrelated individual,
unbeknownst to that individual, is now part of the record in this case.
34
(Tr. 23.)
The Court finds the ALJ failed to properly evaluate Dr. Urrea’s opinion. As noted
above, an ALJ must provide “good reasons” for the weight assigned to treating source
opinions, and articulate those reasons in order to allow for meaningful appellate review. Here,
while the ALJ did provide reasons for discounting Dr. Urrea’s opinion, they are not supported
by substantial evidence.
In particular, the ALJ discounted Dr. Urrea’s opinion on the basis it was “not
supported by or consistent with the relatively routine and conservative mental health
treatment” Gannon received. (Tr. 23.) As an initial matter, the ALJ fails to cite or direct the
reader to the specific types of treatment he used to support his reasoning. Moreover, the Court
does not agree with the ALJ’s or the Commissioner’s characterization of Gannon’s treatment
as “relatively routine and conservative.” Indeed, since her September 2013 accident, Gannon
has regularly treated with a neurologist, a psychologist, a psychiatrist, and a psychiatric nurse
practitioner. (Tr. 413, 525, 687, 924.) She has consulted with a neurosurgeon and a
concussion specialist. (Tr. 658, 425.) She has a patient advocate, a case manager, and a
guardian. (Tr. 424, 684, 688.) Gannon also has had two emergency room visits for altered
mental status – one after which she was found bleeding on the side of a road and another
where she was found naked on the floor. (Tr. 1288, 1284.)
Moreover, Gannon requires an in-home caregiver, a service which is hardly “routine
and conservative.” (Tr. 1067.) In December 2014, the Pennsylvania Department of Public
Welfare determined Gannon required a personal assistant services worker “with her in the
morning and throughout the day as well as the evening to ensure she is eating and taking her
35
medications as prescribed.” (Tr. 1172.) By September 2015, the Pennsylvania Department of
Public Welfare authorized Gannon to receive personal assistant services for 42 hours a week.
(Tr. 1150.) She was noted to be “a severe fall risk” with a “high level of anxiety” and
“extremely nervous.” (Id.) In December 2015, it was recommended Gannon receive
additional hours of assistance, as the behavioral changes from her head trauma had increased,
including “aggression, memory loss, anxiety, agitation, and depression.” (Tr. 1165.)
The ALJ did acknowledge Gannon received in-home services in the decision, but
reasoned “she otherwise lives independently, which indicates she is capable of performing a
number of daily activities independently.” (Tr. 15.) Similarly, the Commissioner8 discounts
the need for these services, characterizing them as “transportation services and Christmas
decorating.” (Doc. No. 16 at 25.) However, the form authorizing these services listed
Gannon’s needs as assistance with bathing, hair care, dressing, meal preparation, eating,
laundry, light housekeeping, shopping, medication management, reading, managing finances,
securing transportation, appointment scheduling, and supervised walks. (Tr. 1151.) The
Pennsylvania Department of Public Welfare has also observed Gannon required “a great deal
of support.” (Tr. 1165.) Moreover, in February 2016, after her two emergency room visits,
the Pennsylvania Department of Public Welfare recommended Gannon begin to receive 24hour care. (Tr. 1173.) Based upon this evidence, it is unclear why the ALJ felt Gannon
“otherwise lives independently.” (Tr. 15.)
8
The Court notes the Commissioner, in her Brief, asserts these services were
necessary due to Gannon’s physical, not mental, impairments. (Doc. No. 16 at
23.) However, the evidence clearly indicates Gannon required assistance not only
due to her physical problems, but her anxiety, depression, memory loss, and
agitation as well. (Tr. 1150, 1165.)
36
The ALJ also discounted Dr. Urrea’s opinion on the basis of an April 1, 2014
treatment note and “relatively normal mental status examination findings from 2015 and
2016.” (Tr. 23.) On April 1, 2014, Gannon underwent a psycho-social assessment with Dr.
Gremelspacher and received a score of 26/30 on the MMSE, indicating a “minor disruption.”
(Tr. 527.) However, Dr. Gremelspacher also observed Gannon was somewhat unkempt, was
complaining loudly in the waiting room, sighed excessively during testing, and displayed
tangential thought content. (Id.) Furthermore, Gannon underwent several other MMSEs
during the relevant period, all in which she scored much lower than 26/30 and displayed
deficits across all areas. (Tr. 690, 686, 1091.)
The ALJ discounted these low MMSE scores by asserting they were “inconsistent
with the largely normal mental status examination findings” in the treatment notes. (Tr. 19.)
He again references these “normal mental status examination findings” when assigning Dr.
Urrea’s opinion little weight. (Tr. 23.) As an initial matter, the ALJ does not cite or direct the
reader to the specific treatment notes and examination findings he uses to support his
reasoning. Moreover, while Gannon’s various treatment providers may have noted intact
memory, insight, and judgment, they also noted Gannon had “a major cognitive impairment
due to trauma,” tangential discourse, would repeat stories, presented as hysterical and in a
disorganized fashion, displayed poor insight, a blunted tone, rapid speech, had persistent poor
sleep, and required frequent redirection. (Tr. 687, 688, 686, 916, 1091, 684, 1087, 1086, 1082,
1080, 924, 1076, 915.) Specifically, in February 2015, Gannon was fidgety, displayed
inappropriate laughter, and “tried to play peek a boo” when she arrived for her appointment
with Dr. Gremelspacher. (Tr. 1078.) Also, during a February 2016 psychotherapy session,
37
Gannon was yelling and pounding her fist on a desk, and standing up and yelling “in the
middle of a sentence.” (Tr. 1067.)
The ALJ does not sufficiently explain how, in light of the above evidence, citing one
treatment note from April 2014 and referencing several normal mental status examinations
supports affording Dr. Urrea’s opinion “little weight.” While the ALJ is not expected to
discuss or cite to every MMSE or treatment note, it is generally recognized that an ALJ “may
not cherry-pick facts to support a finding of non-disability while ignoring evidence that points
to a disability finding.” Smith v. Comm’r of Soc. Sec., 2013 WL 943874 (N.D. Ohio March
11, 2013). See also Taylor v. Comm’r of Soc. Sec., 2014 WL 1874055 at * 4 (N.D. Ohio May
8, 2014)(stating that it “is clear that an ALJ may not determine the RFC by failing to address
portions of the relevant medical record, or by selectively parsing that record—i.e.,
‘cherry-picking’ it—to avoid analyzing all the relevant evidence. This is particularly so when
the evidence ignored is from a treating physician.).
The Court also notes the Commissioner attempts to discredit the portions of Dr.
Urrea’s opinion pertaining to off-task behavior and absences. (Doc. No. 16 at 19.)
Specifically, she asserts since these restrictions were based on Gannon’s physical condition,
and Dr. Urrea did not treat Gannon’s physical condition, this portion of the opinion was “not
within [his] medical specialty and based on medical evidence.” (Id.) As an initial matter, the
ALJ did not discuss these specific restrictions in his analysis of the opinions. As such, the
Commissioner cannot cure a deficient opinion by offering explanations never offered by the
ALJ. See Blackburn v. Colvin, 2013 WL 3967282 at * 8 (N.D. Ohio July 31, 2013)
("arguments [crafted by defense counsel] are of no consequence, as it is the opinion given by
38
an administrative agency rather than counsel's ‘post hoc rationale' that is under the Court's
consideration."). Moreover, the Commissioner’s argument is disingenuous at best. While Dr.
Urrea did opine Gannon would be off-task more than 30% of the workday and would likely be
absent from work three days a month, he did not base this portion of his opinion upon
Gannon’s physical condition. (Tr. 699.) Rather, he filled out a form which instructed him to
consider Gannon’s “physical and mental limitations” in combination and estimate the number
of absences due to Gannon’s “physical and/or mental impairment.” (Id.)
Finally, the Court questions why the ALJ, rather than providing a separate analysis
for Dr. Urrea’s opinion, considers it in conjunction with an opinion unrelated to Gannon. As
discussed supra, there is no record of a “Dr. Roisen” treating Gannon, and more telling, her
medical source statement references a completely different individual, with a different birth
date and social security number. (See Tr. 680-683.) The Court is concerned if the ALJ gave
full and thoughtful consideration to the opinion of Dr. Urrea, as his opinion received the same
exact treatment as a physician unrelated to Gannon.
In sum, the ALJ’s decision fails to set forth good reasons for discounting the opinion
of Dr. Urrea. Accordingly, the Court finds a remand is necessary, thereby affording the ALJ
the opportunity to sufficiently address the limitations assessed by Dr. Urrea.
Nurse Practitioner Graziano
Under Social Security Regulations, a nurse practitioner is not an “acceptable medical
source” entitled to the type of “controlling weight” an “acceptable medical source” enjoys.
See 20 C.F.R §§ 416.902(a)(1) - (8), 416.927(a)(1), 416.927(f).9 However, the regulations
9
For claims filed prior to March 27, 2017. See 20 C.F.R. §§ 416.902(a)(7).
39
also provide these opinions still must be considered, using the same factors listed in 20 C.F.R.
§416.927(c). The regulations further provide “not every factor for weighing opinion evidence
will apply in every case” and the “adjudicator generally should explain the weight given to
opinions from these source or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicators’s reasoning.” 20 C.F.R. §416.927(f)(1)-(2).
Social Security Ruling 06-0310 further explains how opinion evidence from “other
sources” should be treated. SSR 06-03p provides information from “other sources” (such as a
chiropractor) is “important” and “may provide insight into the severity of the impairment(s)
and how it affects the individual’s ability to function.” SSR 06-03p, 2006 WL 2329939 at *23 (August 9, 2006). Interpreting this SSR, the Sixth Circuit has found opinions from “other
sources” who have seen the claimant in their professional capacity “should be evaluated using
the applicable factors, including how long the source has known the individual, how consistent
the opinion is with other evidence, and how well the source explains the opinion.” Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007) (“Following SSR 06-03p, the ALJ
should have discussed the factors relating to his treatment of Hasselle’s assessment, so as to
have provided some basis for why he was rejecting the opinion”). See also Williams v. Colvin,
2017 WL 1074389 at *3 (N.D. Ohio March 22, 2017).
As noted supra, the ALJ considered and weighed the opinion of Ms. Graziano in
conjunction with Dr. Urrea’s opinion, providing the same exact reasons for discounting it.
10
The Court notes SSR 06-03p was rescinded on March 27, 2017. This rescission is
effective for claims filed on or after March 27, 2017. SSR 96-2p, 2017 WL
3928298 at *1.
40
The Court acknowledges Ms. Graziano, as a non-acceptable medical source, is not entitled to
the same deference afforded to Dr. Urrea. However, because the Court has several concerns
regarding the reasoning provided by the ALJ, as detailed above, the ALJ should, upon remand,
more carefully consider the opinion of Ms. Graziano.
State Agency Psychological Consultant
The ALJ weighed the opinion of the state agency psychological consultant as follows:
The undersigned accords great weight to the June 2014 opinion provided
by Disability Determination Services psychological consultant Kerry
Brace, Psy.D. Dr. Brace opined that the claimant had moderate limitations
in activities of daily living, social functioning, and concentration,
persistence, or pace, but no episodes of decompensation. (See Exhibit A1
at 8-9). Dr. Brace opined that the claimant could understand, remember,
and carry out simple work instructions and sustain an ordinary routine
without special supervision, could function adequately in settings not
involving too much interpersonal interaction and could function in settings
no involving high levels of work pressure or frequent changes in routine.
(See Exhibit 1A at 12-14).
While Dr. Brace is not a treating or examining source, she is particularly
familiar with our disability programs and their requirements. Dr. Brace
demonstrated that she thoroughly considered the available medical
evidence in forming her opinion, and her conclusions are consistent with
and supported by Dr. Gremelspacher’s clinical findings from April 1,
2014. Dr. Brace’s conclusions are also largely supported by and consistent
with Dr. Gremelspacher and NP Graziano’s treatment notes from 2015 and
2016, which show that the claimant reported improvement in her
symptoms and appeared largely normal on mental status examinations.
For these reasons, the undersigned accords Dr. Brace’s opinion great
weight.
(Tr. 22-23.)
Gannon argues the ALJ’s “decision to rely on a non-examining source who reviewed
only a fraction of the evidence over the consistent opinions of Plaintiff’s treating providers is
patently unreasonable.” (Doc. No. 15 at 18.) She notes Dr. Brace “did not review nearly
41
1,000 pages of treatment notes that were entered into the record after his review,” including
the treating source opinions and documented need for in-home health services. (Id.)
The Court notes that, regardless of Gannon’s arguments, the ALJ is charged with
considering the findings and opinions of the state agency medical consultants, because the
"Federal or State agency medical or psychological consultants are highly qualified and experts
in Social Security disability evaluation.” 20 C.F.R. §404.1513a(b)(1). Nonetheless, the Court
declines to evaluate the ALJ’s weighing of the state agency opinions, as the ALJ’s of Dr.
Urrea’s opinion on remand may alter his evaluation11 of the state agency physician’s
conclusions.
In sum, the Court finds this matter should be remanded, thereby affording the ALJ the
opportunity to sufficiently address the limitations assessed by Dr. Urrea. Further, on remand,
the Court directs the Commissioner to remove Dr. Roisen’s medical source statement from the
record and ensure only medical evidence pertaining to Gannon is contained within the record.
Finally, as this matter is being remanded for further proceedings, and in the interests
of judicial economy, the Court will not consider Gannon’s remaining12 assignment of error.
11
The Court does find it curious while the ALJ assigned Dr. Brace’s opinion “great
weight,” he did not incorporate the bulk of her findings or limitations in the RFC.
Indeed, Dr. Brace found Gannon was markedly limited in her ability to interact
with the public and could not function in settings involving high levels of work
pressure. (See Tr. 87-88.) By contrast, the only mental limitation in the RFC is a
limitation to unskilled work, involving routine and repetitive tasks. (Tr. 16.)
12
Gannon’s second assignment of error relates to her need for in-home health
services. As detailed above, the Court has concerns regarding the ALJ’s
evaluation of Gannon’s in-home health services. On remand, the ALJ should
carefully consider Gannon’s use of in-home health services when evaluating Dr.
Urrea’s opinion.
42
VII.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is VACATED and the
matter is REMANDED for further proceedings consistent with this decision.
IT IS SO ORDERED.
s/Jonathan D. Greenberg
Jonathan D. Greenberg
United States Magistrate Judge
Date: October 5, 2018
43
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