Hobson v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order: I sustain Hobson's first objection and reverse the decision of the ALJ. This matter is remanded to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Specifically, the ALJ shall determine whether (1) Hobson's alleged agoraphobia and panic disorder is a medically determinable impairment; and (2) if so, whether it meets or equals a listed impairment. re 16 . Judge Jeffrey J. Helmick on 4/12/2016. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Darcie A. Hobson,
Case No. 3:14-cv-2576
Plaintiff
v.
MEMORANDUM OPINION
Commissioner of Social Security,
Defendant
I. INTRODUCTION
Plaintiff Darcie A. Hobson objects to the Report and Recommendation of Magistrate Judge
Kenneth S. McHargh, filed on January 19, 2016, which recommends I affirm the Commissioner of
Social Security’s decision denying Hobson’s application for Supplemental Security Income. (Doc.
No. 17). For the reasons stated below, I sustain Hobson’s objections in part and remand for further
proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
II. STANDARD
A district court must conduct a de novo review of “any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3) and 28 U.S.C. § 636(b)(1);
see also Norman v. Astrue, 694 F.Supp.2d 738, 740 (N.D. Ohio 2010). In making a de novo
determination, this Court reviews the ALJ’s decision to see if it is supported by substantial evidence.
42 U.S.C. § 405(g). The Court “must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence, ‘even where the conclusion of the ALJ may be justified upon
the record.’” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. Jan. 29, 2016).
III. DISCUSSION
There are no objections to the background and administrative record of the case. I therefore
adopt that portion of Magistrate Judge McHargh’s Report and Recommendation in full. (Doc. No.
16 at 1-11).
Hobson contends Magistrate Judge McHargh erred in finding (1) Hobson was not
substantially prejudiced by the Administrative Law Judge’s (“ALJ”) failure to consider Hobson’s
panic disorder and agoraphobia diagnosis (hereinafter “diagnosis”), and (2) the ALJ’s assessment of
non-treating opinions is supported by substantial evidence.
A. FIRST OBJECTION
Hobson objects to Magistrate Judge McHargh’s conclusion “the ALJ considered all the
evidence of record, including evidence relating to limitations that were associated with agoraphobia
with panic disorder, in his mental RFC analysis.” (Doc. No. 16 at 16). Hobson argues, according to
the regulations, the ALJ could not account for the impairment because the ALJ found it was not a
medically determinable impairment. (Tr. 18-19). I agree. “In the absence of a showing that there is a
‘medically determinable physical or mental impairment,’ an individual must be found not disabled at
step 2 of the sequential evaluation process.” SSR 96-4P (S.S.A.), 1996 WL 374187, at 1. “[A]n
impairment that can be shown by medically acceptable clinical and laboratory diagnostic
techniques,” such as a licensed physician’s diagnosis, is a medically determinable impairment. SSR
96-7P (S.S.A.), 1996 WL 374186, at *2.
Jonathan Sirkin, M.D. diagnosed Hobson with panic disorder with agoraphobia on April 24,
2012. (Doc. No. 10 at 738-39). The parties do not dispute the ALJ overlooked Dr. Sirkin’s diagnosis
in determining Hobson’s eligibility for disability benefits. (Doc. Nos. 11 at 9; 14 at 10) (“In
determining that Plaintiff’s alleged agoraphobia and panic disorder were not medically determinable
impairments, the ALJ erroneously indicated that Dr. Sirkin declined to diagnose Plaintiff with panic
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disorder with agoraphobia”). According to 20 C.F.R. § 404.1545, the Commissioner is obligated to
consider “all medical evidence” in determining whether the claimant has a disability. After
considering similar cases, I cannot find the ALJ’s noncompliance with the regulations in this case
constitutes harmless error.
The Sixth Circuit supports remand where an ALJ fails to determine whether a medically
determinable impairment meets or equals a listed impairment at step two. See Reynolds v. Comm’r of
Soc. Sec., 2011 WL 1228165, *2 (6th Cir. 2011). “[T]he ALJ need[s] to actually evaluate the evidence,
compare it to [a] Listing, and given an explained conclusion, in order to facilitate meaningful review.
Without it, it is impossible to say that the ALJ’s decision at Step Three was supported by substantial
evidence.” Id. at *4. See also Morgan v. Astrue, No. CIV.A. 10-207-KSF, 2011 WL 2292305, at *7
(E.D. Ky. June 8, 2011); Weisgarber v. Colvin, No. 3:13-CV-426-TAV-CCS, 2014 WL 3052488, at *8
(E.D. Tenn. July 3, 2014); Solesbee v. Astrue, No. CIV.A. 2:10-1882-RMG, 2011 WL 5101531, at *4
(D.S.C. Oct. 25, 2011).
In Reynolds,the ALJ found the claimant had severe mental and physical impairments at step 2.
But, at step 3, the ALJ analyzed whether the claimant’s mental impairments met or equaled a listed
impairment only, failing to assess whether the claimant’s physical impairments met or equaled a
Listing. 2011 WL 1228165 at *3. The Sixth Circuit remanded “for the ALJ to revisit the case and
explain his findings at Step Three.” Id. at *1. The Court noted:
The ALJ’s error was not harmless, for the regulations indicate that if a person is
found to meet a Listed impairment, they are disabled within the meaning of the
regulations and are entitled to benefits; no more analysis is necessary. 20 C.F.R. §
404.1520a(4)(iii). Therefore, if the ALJ had properly analyzed Step Three, and found
Reynolds met Listing 1.04, she would receive benefits regardless of what the ALJ’s
conclusion would have been at Steps Four and Five. Additionally, in this case,
correction of such an error is not merely a formalistic matter of procedure, for it is
possible that the evidence Reynolds put forth could meet this listing.
In short, the ALJ needed to actually evaluate the evidence, compare it to Section 1.00
of the Listing, and give an explained conclusion, in order to facilitate meaningful
judicial review. Without it, it is impossible to say that the ALJ’s decision at Step
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Three was supported by substantial evidence. See [sic] Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996); Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999); Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000). As the Third Circuit explained,
‘[b]ecause we have no way to review the ALJ’s hopelessly inadequate step three
ruling, we will vacate and remand the case for a discussion of the evidence and an
explanation of reasoning’ supporting the determination that [the claimant’s] severe
impairments do not meet or medically equal a listed impairment. Burnette, 220 F.3d at
120.
Id.
A similar situation was presented in in Morgan v. Astrue, No. CIV.A. 10-207-KSF, 2011 WL
2292305, at *7 (E.D. Ky. June 8, 2011). There, the ALJ made the same mistake: failing to analyze
whether the claimant’s physical impairments met or equaled a Listing where he found them to be
“severe” impairments at step two. 2011 WL 2292305, at *7. The Court likewise noted:
…[T]he ALJ’s failure to analyze Plaintiff’s physical impairments at all at step three of
the evaluation process makes meaningful review of the ALJ’s decision impossible.
Although an extensive discussion and analysis of each claimed impairment may not
be required, in this case, there was not even a conclusory statement indicating that
the ALJ had, at the very least, considered Plaintiff’s physical impairments, compared
those impairments to a Listing or Listings, and determined that those impairments
did not meet or equal a Listing. The ALJ was clearly aware of Plaintiff’s physical
impairments, as he identified them early in the evaluation process and later discussed
and incorporated them into his determination of Plaintiff’s RFC. It is possible that,
at step two, the ALJ determined that Plaintiff’s physical impairments were not
‘severe,’ and, accordingly, although these impairments should be considered in
determining Plaintiff’s RFC, there was no need to analyze whether these physical
impairments met or equaled a Listing. However, at step two, the ALJ failed to
specifically identify which, if any, of Plaintiff’s impairments he found to be ‘severe.’
Thus, it is impossible to tell if the ALJ determined that none of Plaintiff’s physical
impairments were ‘severe,’ or if the ALJ simply forgot to evaluate Plaintiff’s physical
impairments at step three. For all of these reasons, the Court cannot meaningfully
review the ALJ’s application of step three and determine whether the ALJ’s findings
at this step are supported by substantial evidence. Although, as suggested by the
court in Rabbers, it is theoretically possible for this Court to review the medical
evidence in the record, compare Plaintiff’s physical impairments to the Listings, and
make its own determination regarding whether Plaintiff’s physical impairments meet
or exceed a Listing, this Court cannot conduct a de novo review of Plaintiff’s claim,
resolve conflicts in the evidence, or make credibility determinations. Cutlip, 25 F.3d
at 286. Thus, the step three evaluation of Plaintiff’s physical impairments is a task
more appropriately undertaken by the ALJ.
Id.
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Likewise, in Weisgarber,, the Court noted the ALJ’s failure to consider the claimant’s
“psychotic disorder, not otherwise specific” diagnosis. 2014 WL 3052488, at *7. The Court noted:
Furthermore, even if the Court were to find that the Plaintiff would be unable to
make a showing that he meets or medically equals Listing 112.03, that does not end
the inquiry. The Plaintiff’s diagnosis of ‘psychotic disorder, not otherwise specific,’
was not even evaluated by the ALJ. It is unclear to the Court whether the ALJ simply
overlooked the effect of the diagnosis completely or whether she found the diagnosis
was not a severe impairment and had no effect on the Plaintiff’s ability to function.
While the ALJ mentioned in passing that the Plaintiff was diagnosed with a psychotic
disorder [Tr. 16], the ALJ later concluded [Tr. 23] that the record indicated that the
Plaintiff was being treated for ADHD with psychosis but that he had improved
significantly with medications. The ALJ appears to have treated the Plaintiff’s
psychotic disorder and ADHD as mutually exclusive, rather than analyzing the
impairments singularly to determine whether the psychotic disorder alone or in
combination with other impairments, i.e., ADHD, had an effect and the extent of
that effect on the Plaintiff.
Because step three confers an important procedural benefit on the Plaintiff, the
evaluation of the Plaintiff’s psychotic disorder, including its severity and whether it
meets or medically equals a Listing 112.03, is more appropriately tasked for the ALJ.
Accordingly, the Plaintiff’s allegation of error is well-taken. The Court will
recommend that this case be remanded to the ALJ to: (1) fully analyze and compare
the evidence in this case with Listing 112.03A and B; and (2) address whether the
Plaintiff’s psychotic disorder is a severe impairment and the effect, if any, it has on
the Plaintiff’s ability to function. Given the limited amount of medical evidence
dated after July 2010, the ALJ is directed to acquire additional medical evidence
and/or opinions as needed to fully develop and better address the issue.
In addition, a case in which an ALJ failed to consider an identical diagnosis, panic disorder
with agoraphobia, at step 2, was also remanded by the district court. See, Solesbee, 2011 WL 5101531,
at *4.
In this case, the parties do not dispute that the ALJ overlooked record medical evidence in
determining Hobson’s eligibility to disability benefits. In light of this omission, and the deferential
standard afforded to the ALJ’s decision, I find the Court cannot engage in a meaningful review of
this decision.
A court may affirm, modify, or reverse the Commissioner’s decision, with or without
remanding the case for a rehearing. Id. “[E]ven if supported by substantial evidence, ‘a decision of
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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.’” Rabbers
v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009). As the consideration of this diagnosis
is for the benefit of both parties and was required for consideration by the ALJ in making the
disability determination, I cannot find it constitutes harmless error.
Therefore, I sustain Hobson’s objection, and remand to the Commissioner to determine
whether (1) Hobson’s alleged agoraphobia and panic disorder is a medically determinable
impairment; and, (2) if so, whether it meets or equals a listed impairment.
B. SECOND OBJECTION
As I determined this case must be remanded to the ALJ for reconsideration, I decline to
address Hobson’s second objection.
V. CONCLUSION
For the reasons stated above, I sustain Hobson’s first objection and reverse the decision of
the ALJ. This matter is remanded to the Commissioner for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). Specifically, the ALJ shall determine whether (1) Hobson’s
alleged agoraphobia and panic disorder is a medically determinable impairment; and (2), if so,
whether it meets or equals a listed impairment.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
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