Short v. Commissioner of Social Security et al

Filing 18

REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and Remanded for further proceedings pursuant to Sentence Four of 42 USC 405(g). Objections to R&R due by 2/19/2013. Signed by Magistrate Judge Karen L. Litkovitz on 2/1/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TONYAM. SHORT,
Plaintiff,

Case No. 1:12-cv-94
Barrett, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final
decision of the Commissioner of Social Security (Commissioner) denying plaintiffs applications
for disability insurance benefits (DIB) and supplemental security income (SSI). This matter is
before the Court on plaintiffs statement of errors (Doc. 11 ), the Commissioner's response in
opposition (Doc. 14), and plaintiffs reply memorandum. (Doc. 17).

I. Procedural Background
Plaintiff filed applications for DIB and SSI in September 2007, alleging disability since
July 1, 2007 1, due to asthma, depression, diabetes, and high blood pressure. (Tr. 187). Plaintiffs
applications were denied initially and upon reconsideration. Plaintiff, through counsel, requested
and was granted a de novo hearing before Administrative Law Judge (ALJ) Larry A. Temin.
Plaintiff and a vocational expert (VE) appeared and testified at the ALJ hearing. On September
23, 2010, the ALJ issued a decision denying plaintiffs DIB and SSI applications. Plaintiffs
request for review by the Appeals Council was denied, making the decision of the ALJ the final
administrative decision of the Commissioner.
1

Plaintiff initially alleged an onset date of disability of October 10, 2006. This was subsequently amended to July 1,
2007. (Tr. 147-48).

II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A)
(DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the
work previously performed or in any other substantial gainful employment that exists in the
national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) lfthe claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities -the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.
Rabbers v. Comm 'r ofSoc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing§§ 404.1520(a) (4)(i)-

(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps ofthe
sequential evaluation process. Id; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541, 548 (6th Cir.
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2004). Once the claimant establishes a prima facie case by showing an inability to perform the
relevant previous employment, the burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that such employment exists in the
national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.
1999).

B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of the Social Security Act through
December 31, 2011.
2. The [plaintiff] has not engaged in substantial gainful activity since July 1, 2007,
the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The [plaintiff] has the following severe impairments: obesity; asthma/allergies;
status post left thoracotomy with decertification of lung and pleura; diabetes
mellitus; an affective disorder; and an anxiety disorder (20 CFR 404.1520( c) and
416.920(c)).
4. The [plaintiff] does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,404.1526, 416.920(d),
416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
[plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b). Specifically, the [plaintiff] can perform
work activities except as follows: She can lift/carry up to 20 pounds occasionally
and 10 pounds frequently. She can stand and/or walk for a total of 6 hours in an
8-hour work day, and she can sit for a total of 6 hours in an 8-hour workday. She
can only occasionally stoop, kneel, crouch, and climb ramps and stairs. She
should not crawl, climb ladders, ropes or scaffolds or work at unprotected heights
or around hazardous machinery. She cannot work with concentrated exposure to

3

fumes, noxious odors, dusts or gases. Mentally, the claimant is able to perform
only simple, routine repetitive tasks. She is able to remember and carry out only
short and simple instructions. She cannot interact with the general public, and she
cannot interact with coworkers or supervisors more than occasionally. The
[plaintiffs] job should not require more than ordinary and routine changes in
work setting or duties. She is able to make only simple work-related decisions.
6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416.965). 2
7. The [plaintiff] was born [i]n 1979 and was 27 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date (20 CFR
404.1563 and 416.963)
8. The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
9. 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 (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the [plaintiffs] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).
(Tr. 13-21 ).

C. Judicial Standard of Review
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm 'r ofSoc. Sec., 581 F.3d 399,406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).

2

Plaintiffs past relevant work was as an office cleaner, trash truck driver, daycare worker, crew manager, fast food
worker, emissions tester, receptionist, and telemarketer.

4

The Commissioner's findings must stand if they are supported by "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402
U.S. 389,401 (1971) (citing Consolidated Edison Co. v. NL.R.B., 305 U.S. 197,229 (1938)).
Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance .

. . ." Rogers v. Comm 'r ofSoc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the
Commissioner's findings are supported by substantial evidence, the Court considers the record as
a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ' s conclusion that the
plaintiff is not disabled, "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." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004) (reversal required
even though ALJ' s decision was otherwise supported by substantial evidence where ALJ failed
to give good reasons for not giving weight to treating physician's opinion, thereby violating the
agency's own regulations).

D. Specific Errors
Plaintiff assigns three errors in this case: (1) the factual and legal basis for the RFC
finding is not set forth with "such clarity as to be understandable" as required by SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947), and does not meet the narrative discussion requirement of

5

Social Security Ruling 96-8p3; (2) the ALJ improperly weighed the medical opinions of record;
and (3) the ALJ's credibility analysis is unsupported by the evidence.
1. The clarity of the ALJ's RFC decision.

Plaintiffs first assignment of error asserts the ALJ' s RFC determination lacks sufficient
specificity and violates the principle enunciated in SEC v. Chenery Corp., 318 U.S. 80, 94
(1943), which requires administrative determinations to clearly disclose the grounds upon which
the decision is based. Plaintiff argues "there is no particular evidence specified that the ALJ
relies upon to support his RFC, but takes refuge in murky references to 'significant' weight given
to non-examining two plus year old mental and physical evaluations by non-examiners while
disparaging all treating and examining medical source opinions contemporaneous with the entire
alleged period of disability." (Doc. 11 at 11-12). In support of his argument, plaintiff cites to the
ALJ's "own" evaluation of the medical evidence relating to plaintiffs pulmonary function
impairment; the ALJ's failure to consider the June 2010 report of plaintiffs treating physician,
Jamie Evans, M.D.; the ALJ's assessment of plaintiffs diabetic neuropathy; the ALJ's reliance
on a treating physician's comment that she was "not comfortable" endorsing plaintiffs long term
disability; and the ALJ's assessment of the reasons given by a treating physician for plaintiffs

3

Social Security Ruling 96-8p provides in relevant part:
The RFC assessment must include a narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence
(e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the
individual's ability to perform sustained work activities in an ordinary work setting on a regular
and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can perform based on
the evidence available in the case record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were considered and resolved.

6

noncompliance with taking prescribed medication. (Doc. 11 at 8-11 ). Rather than addressing
the alleged lack of clarity of the ALJ' s decision, plaintiffs arguments and citations to the record
are directed at attacking the underlying reasons given by the ALJ and the evidentiary support (or
lack thereof) for the ALJ's RFC decision. The Court finds no error under Chenery.
The ALJ' s decision is sufficiently specific to allow this Court to perform its judicial
review function. In assessing plaintiffs RFC, the ALJ' s decision sets forth in detail his
consideration of plaintiffs allegations of pain and limitations; plaintiffs activities of daily living
and social functioning; plaintiffs pulmonary function, diabetes, neuropathy, and mental
impairments and the alleged limitations resulting from these impairments; plaintiffs compliance
with prescription medications; and the opinion evidence from the state agency consultants and
plaintiffs treating physicians. (Tr. 16-21). The undersigned is able to reasonably discern the
evidentiary basis for the ALJ' s decision to limit plaintiff to a range of light work with certain
non-exertional restrictions. See Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29,43 (1983) (reviewing court on judicial review "may not supply a reasoned basis for the
agency's action that the agency itself has not given," but may "uphold a decision ofless than
ideal clarity if the agency's path may reasonably be discerned.") (quoting, respectively, Chenery,
332 U.S. at 196; and Bowman Transp. Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281,286
(1974)). Nevertheless, whether the ALJ's stated reasons for his RFC decision are supported by
substantial evidence and whether the ALJ applied the correct legal standards are different
questions altogether that the Court must address.
Plaintiff also cites to Parker v. Astrue, 597 F.3d 920,921-22 (7th Cir. 2010) (Doc. 17 at
2), in which the Seventh Circuit held that boilerplate language similar to that used by the ALJ in

7

determining plaintiffs RFC was not sufficiently detailed to provide the reviewing court with the
grounds upon which the RFC determination was based. Parker is distinguishable from the
instant case in that the ALJs in the Parker case "failed to mention highly pertinent evidence
[and/or] fail[ed] to build a logical bridge between the facts ofthe case and the outcome." !d. at
921. The ALJs' administrative determinations were overturned not for the use of boilerplate
language, but because, in addition, the decisions were fundamentally flawed: one ALJ failed to
properly consider the cumulative effects of impairments and the other completely ignored
pertinent evidence contained in a treating physician's notes. !d. at 923-25. Whether these
deficiencies are present in the instant case are best determined in connection with plaintiffs
second and third assignments of error. While both ALJ Temin and the ALJs in the Parker case
used similar, boilerplate language, here the boilerplate language is accompanied by a detailed
basis for the RFC determination and a narrative discussion of the medical and other evidence in
support thereof in compliance with Social Security Ruling 96-8p. There is a sufficient record
upon which this Court can determine whether or not the ALJ' s determination is supported by
substantial evidence. As such, the Court turns to plaintiffs other assignments of error.

2. The ALJ's weighing of the medical opinions.
Plaintiffs second assignment of error asserts the ALJ erred in weighing the medical
opinions of record and, as a result, the ALJ' s conclusion about plaintiffs RFC is not supported
by substantial evidence. Plaintiff contends the ALJ failed to give appropriate weight to the
medical opinions of plaintiffs treating physicians on her mental impairments and failed to give
"good reasons" for doing so; failed to properly consider the RFC opinion of the consultative
examining psychologist, Jeanne Spadafora, Ph.D.; and improperly gave significant weight to the
8

opinions of the non-examining state agency physicians and psychologists who were without all
the medical evidence of record. Plaintiffs arguments are well-taken.
It is well-established that the findings and opinions oftreating physicians are entitled to

substantial weight. "In general, the opinions of treating physicians are accorded greater weight
than those of physicians who examine claimants only once," Walters v. Comm 'r ofSoc. Sec., 127
F.3d 525, 530-31 (6th Cir. 1997); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985), or those
of a non-examining medical consultant who merely reviews the medical records. Shelman v.

Heckler, 821 F.2d 316, 321 (6th Cir. 1987). The treating physician rule mandates that the ALJ
"will" give a treating source's opinion controlling weight if it "is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant's] case record." Cole v. Astrue, 661 F.3d 931,937 (6th Cir.
2011) (citing former 20 C.F.R. § 404.1527(d)(2)). 4 If the ALJ declines to give a treating source's
opinion controlling weight, the ALJ must balance the factors set forth in 20 C.F.R. §§
404.1527(c)(2)-(6) and 416.927(c)(2)-(6) in determining the weight to afford the opinion. See

Wilson, 378 F.3d at 544. These factors are the length, nature and extent of the treatment
relationship and the frequency of examination, how well-supported by evidence the opinion is,
how consistent the opinion is with the record as a whole, the medical specialty of the source, and
other factors which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(3)-(6);
416.927(c)(3)-(6); Wilson, 378 F.3d at 544. The Social Security regulations require an ALJ to
"give good reasons" for not giving weight to a treating physician's opinion, Wilson, 378 F.3d at

4

Title 20 C.F.R. §§ 404.1527 and 416.927 have been amended and renumbered. The provisions governing the
weight to be afforded a medical opinion were previously found at§§ 404.1527(d) and 416.927(d) and are now found
at subsection (c).

9

544 (citing former 20 C.F.R. § 404.1527(d)(2)) and those reasons must be "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 Soc. Sec., 486 F.3d 234,
242 (6th Cir. 2007) (internal quotations and citations omitted).
Dr. Laurie Carrier, a doctor of psychiatry and family medicine, began treating plaintiff
with weekly psychotherapy and medication management on October 25, 2007. (Tr. 357, 789). In
a December 21, 2007 report, Dr. Carrier stated plaintiff was diagnosed with bipolar affective
disorder. (Tr. 359). In terms of significant clinical mental status abnormalities, Dr. Carrier
reported that plaintiff has a mood disorder with increased irritability, depression and difficulty
concentrating, and that plaintiff "is unable to 'mentally' take her prescribed medicines (for health
and mental reasons) because of abnormal thought processes." (Tr. 358). She also reported that
plaintiff has decreased concentration and an inability to comprehend that she will not become
addicted to prescribed medicines despite education. (Tr. 358). Dr. Carrier noted that when
plaintiff is very depressed or agitated, her self-care and hygiene decreases. !d. In terms of social
interactions, plaintiff becomes "very irritable and hostile quickly" and "feels she has no warning
prior to these episodes." !d. Therapy included use of behavioral techniques to prevent episodes
of outbursts, irritability and "irrationality" and working on plaintiffs "mindset regarding
medications as pt [patient] is not currently taking but meds would be helpful with these
episodes." (Tr. 358-59). Dr. Carrier stated plaintiff has a low threshold to tolerate stress in the
workplace and in a daily routine. (Tr. 359).
That same month, Dr. Carrier completed a mental functional capacity assessment that
rated plaintiff as markedly limited in her ability to carry out very short and simple or detailed
10

instructions; maintain attention and concentration for extended periods; work in coordination
with or proximity to others without being distracted; complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform at a consistent pace;
accept instructions and respond appropriately to criticism from supervisors; and get along with
coworkers or peers without distracting them or exhibiting behavioral extremes. (Tr. 795).
In September 2008, Dr. Carrier completed another mental functional capacity assessment
that rated plaintiff as markedly limited in most of the same areas previously documented.
Plaintiff was also markedly limited in her ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances; to maintain socially appropriate
behavior; and to adhere to basic standards of neatness and cleanliness. (Tr. 792).
In June 2009, Dr. Carrier reported that she had been treating plaintiff for two years
starting in the summer of 2007 and that her depression and anxiety have been considerably worse
since the death of her father in December 2008. (Tr. 789). Dr. Carrier opined that plaintiffs
depression was disabling, affecting her concentration, energy levels, sleep, appetite and physical
functioning. Id Dr. Carrier reported that plaintiff had engaged in weekly psychotherapy and
medication management since October 25, 2007 and that her health status was deteriorating. Id
On mental status exam, plaintiffs appearance was unkempt and tearful, her mood was depressed,
her affect was congruent, and her insight and judgment were fair. !d. Dr. Carrier opined that the
severity of plaintiffs depression and anxiety resulted in the disruption of concentration, focus,
and the ability to work with other people, and that plaintiff "can not hold a job at this time." (Tr.
790).

11

---------------------

-

Plaintiff began treating with Dr. Jamie Evans, a doctor of psychiatry and family medicine
and colleague of Dr. Carrier, in June 2009. (Tr. 756). In December 2009, Dr. Evans opined that
plaintiff was markedly limited in her ability to remember locations and work-like procedures;
understand, remember, and carry out detailed instructions; maintain attention and concentration
for extended periods; perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerances; complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace; interact
appropriately with the general public; accept instructions and respond appropriately to criticism
from supervisors; get along with coworkers or peers without distracting them or exhibiting
behavioral extremes; and respond appropriately to changes in the work place. (Tr. 788).
In June 2010, Dr. Evans reported that plaintiffs long standing history of depression and
anxiety dating back to October 2007 and severe, persistent asthma have limited plaintiffs ability
to physically function. (Tr. 785). Dr. Evans reported psychiatric findings of depressed and labile
mood (crying to angry), anxiousness, poor concentration and memory, and disheveled and
unkempt appearance. !d. Dr. Evans stated that plaintiff required regular follow-up on a weekly
to bi-weekly basis to gain control of her multiple medical and psychiatric conditions. !d.
In a letter dated June 8, 2010, Dr. Evans stated:
I have been evaluating and treating Ms. Tonya Short for one year- previously she
was treated by my colleague Dr. Laurie Carrier. She is currently suffering from
multiple medical conditions, including severe persistent asthma, chronic pain
related to complications of pneumonia and asthma in 2007, diabetes mellitus type
2, depression, and anxiety.
With regard to her asthma, it is severe persistent and has in the past required her
multiple hospitalizations plus a stay in the intensive care unit with intubation in
2007 (secondary to pneumonia which required chest tube placement). Her asthma
has been poorly controlled despite all efforts to improve it including use of steroid
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inhalers for maintenance, beta-agonists for rescue in acute flare ups, and
prolonged oral steroids. She has recently completed a one month steroid taper
with Prednisone which was unsuccessful in treating her symptoms. The resistance
of her medical condition to our treatment efforts has led us to refer her to a
pulmonary specialist to assist with her care, as I am suspicious for another
possible underlying pulmonary condition.
Ms. Short also suffers from both depression and significant anxiety which has not
responded optimally to treatment. Much of these problems began following the
aforementioned hospitalization which also caused significant chronic pain. She
has suffered from picking due to her anxiety, which has caused several skin
infections due to this. Her therapy is limited in use of certain medications (i.e.,
beta blockers) due to probable worsening of her already severe asthma symptoms.
Ms. Short's depression has been difficult to control also due to co-morbid poorly
controlled diabetes mellitus type 2 (her last measured blood glucose on laboratory
studies was >500) ....
Ms. Short's asthma, diabetes, and chronic pain along with her psychiatric illness
and lack of financial resources to support optimal health maintenance have caused
significant impairment in occupational and social functioning. It is not anticipated
that she will recover from these conditions considering her lack of progress
despite my considerable effort throughout the past year (and Dr. Carrier's prior
efforts) to help control these problems. Based upon these findings, Ms. Short's
condition will continue to deteriorate further with worsening of her physical
condition [illegible] worsening neuropathy and chronic pain -.which in turn is
expected to worsen her psychological status. Unfortunately, the overall picture
does not appear to lead to Ms. Short returning to her pre-morbid level of
functioning, including resuming employment.
(Tr. 784).
In the instant case, the ALJ gave less weight to the opinions of plaintiffs treating
physicians, Drs. Carrier and Evans, than to the non-examining state agency consultant whose
December 2007 opinion was given significant weight. The ALJ determined that the opinions of
Drs. Evans and Carrier were only entitled to little weight because Dr. Carrier examined plaintiff
only three times (Tr. 20, citing Tr. 761, 764, 767) and Dr. Evans examined plaintiff only two
times (Tr. 20, citing Tr. 751, 756); there are no mental examinations or treatment records
supporting the limitations imposed by the treating doctors (Tr. 19, 20); and neither doctor
13

"satisfactorily" addressed plaintiffs alleged noncompliance with taking prescription medications.
(Tr. 21).
The ALJ' s decision is premised on factual errors and a review of an incomplete record,
both of which compel a finding that his decision is not supported by substantial evidence. The
ALJ discounted Dr. Carrier's opinion based on the infrequency of treatment, suggesting that Dr.
Carrier did not have the longitudinal picture of plaintiffs mental impairments to assess the
limitations she found. Contrary to the ALJ's finding that Dr. Carrier only examined plaintiff
three times, the record evidence shows that Dr. Carrier engaged plaintiff in weekly psychotherapy
and medication management since October 25, 2007 for approximately two years. (Tr. 789).
The ALJ's decision acknowledges plaintiffs visits with Dr. Carrier at the University Family
Physician's office in 2009, but ignores the records from 2007 when Dr. Carrier began treating
plaintiff (Tr. 684-85), as well as various references to plaintiffs counseling with Dr. Carrier
throughout the record. (Tr. 689, 682, 680, 668-69). Significantly, when Dr. Carrier first
examined plaintiff in October 2007, she stated, "Pt would highly benefit from weekly
psychotherapy (CBT), will refer to central clinic for weekly therapy with myself where pt can
have an hour appt, f/u w/PMD, Dr. Ireton as scheduled." (Tr. 685). 5 Unfortunately, the record
does not reflect that any attempts were made to obtain plaintiffs counseling records from the

5

The ALJ also cited to an October 4, 2007 notation by Dr. Ironton that plaintiff needed a form from the Department
of Jobs and Family Services completed for long-term disability and "I am not comfortable doing this, as I expect pt
to work on improving her medical conditions and get back to work. I wrote 3 mos, with the notation that her medical
conditions will be lifelong, and explained this to the patient." (Tr. 689). Yet, Dr. Ironton's October 4, 2007
statement was made before plaintiff was diagnosed with "disorder, episodic mood NOS" and started her two-year
counseling stint with Dr. Carrier on October 25, 2007. (Tr. 685; see also Tr. 689).

14

Central Clinic, an outpatient mental health agency in Hamilton and Butler Counties, Ohio, 6
despite plaintiffs report to the Social Security Administration that she received counseling and
medication therapies from Dr. Carrier at the Central Clinic (Tr. 247), plaintiffs report to Dr.
Spadafora that she was treated at the Central Clinic (Tr. 362), and the references to counseling
with Dr. Carrier contained in the family practice records. 7 In the absence of consideration of the
records from the Central Clinic where plaintiff actually received treatment for a two year period,
as well as the 2007 records from the family practice office the ALJ ignored, the ALJ' s
justifications for discounting Dr. Carrier's opinion - because of alleged infrequent treatment and
lack of supporting treatment records - are not "good reasons" under Wilson for discounting Dr.
Carrier's opinion. See Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ("It is the ALJ's duty to
investigate the facts and develop the arguments both for and against granting benefits."). Thus,
the ALJ' s decision discounting Dr. Carrier's opinions based on alleged infrequency of treatment
and the lack of supporting treatment records is without substantial support in the record. 8
The ALJ also erred when he gave less weight to Dr. Evans' December 2009 opinion
based on the incorrect assumption she treated plaintiff only twice. (Tr. 20, citing Tr. 751, 756).

6

See http://www.centralclinic.org/ (last visited on January 26, 2013). Plaintiff advised the Social Security
Administration that she received treatment at the Central Clinic on Burnet Avenue in Cincinnati, Ohio in addition to
treatment at the University Family Physicians office in Forest Park, Ohio. (Tr. 247-48).
7

While the records from the University Family Physicians office in Forest Park, Ohio were obtained, where plaintiff
sometimes saw Dr. Carrier in addition to numerous other physicians in the practice, there is no indication her records
from Central Clinic were requested or obtained.
8

To the extent the Commissioner argues the ALJ was justified in giving Dr. Carrier's opinion less weight because she
was a resident physician, the Commissioner has not directed the Court's attention to any regulation or case law
indicating that this is a valid reason for discounting a treating physician's opinion. In any event, the clinical notes
completed by Dr. Carrier contain an acknowledgment from a preceptor noting discussion and agreement with Dr.
Carrier's findings and plan. Moreover, it seems incongruous to give less weight to a physician like Dr. Carrier with a
several year history of treatment based on residency status, yet significant weight to agency psychologist who never
examined plaintiff and who only had a limited portion of the medical evidence.

15

The record reflects that in addition to treating plaintiff in September 2009 (Tr. 751) and June
2009 (Tr. 756), which the ALJ acknowledged, Dr. Evans also treated plaintiff in October 2009
(Tr. 856-860), December 2009 (Tr. 851-855), January 2010 (Tr. 832-836), March 2010 (Tr. 827831), April2010 (Tr. 824-826), June 2010 (Tr. 819-823), and July 2010 (Tr. 809-818). Dr.
Evans' chart also includes records from the emergency department in January 2010 showing
plaintiff was treated for an asthma exacerbation, shortness of breath, racing thoughts, and
anxiety. (Tr. 837-840). In addition, Dr. Evans provided a detailed narrative report in June 2010
reflecting her treatment of plaintiffs multiple medical conditions and the effect of these
impairments on her occupational and social functioning (Tr. 784), which the ALJ's decision fails
to acknowledge. Because the ALJ failed to acknowledge the October 2009 through July 2010
records showing plaintiffs treatment with Dr. Evans, as well as Dr. Evans' June 2010 report, the
ALJ's decision giving less weight to Dr. Evans is without substantial support in the record.
The ALJ also rejected the findings of the treating physicians because they failed to
"satisfactorily" address plaintiffs noncompliance with taking prescription medications. (Tr. 21).
The ALJ acknowledged Dr. Carrier's statement that plaintiff was "unable to 'mentally' take her
prescribed medicines (for health and mental reasons) because of abnormal thought processes."
(Tr. 358). The ALJ rejected this explanation, however, because "many people with mental
disorders are capable of taking medications." (Tr. 21 ). While that certainly may be so, the ALJ' s
lay opinion in this regard is not supported by any medical opinion or evidence contradicting the
treating psychiatrist's explanation for plaintiffs lack of compliance. In fact, plaintiffs therapy in
December 2007 included use of behavioral techniques to work on plaintiffs "mindset regarding
medications as pt [patient] is not currently taking but meds would be helpful with these episodes"
16

(Tr. 358-59), supporting Dr. Carrier's explanation. In addition, neither the ALJ nor the
Commissioner cites to instances of noncompliance with mental health medications in 2008,
2009, or 2010. This is not a good reason for discounting the treating physicians' opinions.
Further compounding these errors is the ALJ' s weighing of the opinions of the
consultative examiners in this case. The ALJ relied on the December 2006 consultative
examination of Dr. Chiappone to conclude that plaintiff had only mild and moderate limitations
in her mental functioning. (Tr. 19). The ALJ noted that Dr. Chiappone assigned a GAF score of
55 9 for plaintiffs symptoms, which suggested moderate symptoms, and a GAF of 61 for her
functional level, which suggested only mild symptoms. (Tr. 19). However, Dr. Chiappone's
examination occurred some seven months before plaintiffs amended alleged onset date of July 1,
2007, and three years before the ALJ hearing.
In contrast, the ALJ's decision is silent on the opinion of clinical psychologist Jeanne
Spadafora, Ph.D., who examined plaintiff at the request of the Social Security Administration six
months after plaintiffs amended alleged onset date, and who opined that plaintiff suffered from a
serious impairment with a GAF rating of 41. (Tr. 366). Dr. Spadafora diagnosed Major
Depressive Disorder, recurrent, severe with psychotic features and panic disorder with
agoraphobia. !d. On mental status examination, plaintiffs affect was blunted, her mood was
dejected, and her facial expressions were sad and downcast. (Tr. 362). She manifested tension
and psychomotor arousal and often ruminated. (Tr. 363). Dr. Spadafora opined that plaintiff was
9

A GAF score represents "the clinician's judgment of the individual's overall level of functioning." American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000). The
GAF score is taken from the GAF scale, which "is to be rated with respect only to psychological, social, and
occupational functioning." !d. The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of
severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death). /d. at 34. The DSM-IV categorizes individuals with scores of 41 to 50 as having
"serious" symptoms. /d. at 32. Individuals with scores of 51-60 are classified as having "moderate" symptoms. /d.

17

"extremely impaired" in her ability to withstand the stress and pressure associated with day-today activities, and was "markedly impaired" in her ability to relate to others and to maintain
attention, concentration and persistence. (Tr. 365). Yet, the ALJ's decision makes no mention of
Dr. Spadafora's examination or findings, suggesting the ALJ ignored the evidence from Dr.
Spadafora which showed more severe limitations in plaintiffs functioning than those found by
Dr. Chiappone. The Commissioner argues that the ALJ' s "oversight" was harmless. (Doc. 14 at
16). The Court disagrees because Dr. Spadafora's findings and limitations are consistent with
those of plaintiffs treating doctors and lend consistency and support to their opinions on
plaintiff's ability to perform work-related activities from a mental standpoint. Every medical
source who examined or treated plaintiff after her amended alleged onset date found plaintiff
more limited than the non-examining state agency reviewer. Where, as here, the ALJ is
presented with conflicting probative evidence, he "must explain why that conflicting evidence
was not credited." Becker v. Comm 'r ofSoc. Sec., No. 1:07-cv-950, 2009 WL 483833, at *4
(S.D. Ohio Feb. 25, 2009) (citing Fargnoli v. Halter, 247 F.3d 34, 42 (3rd Cir. 2001); Cotter v.
Harris, 642 F.2d 700, 705 (3rd Cir. 1981)). Otherwise, the reviewing court is unable to discern

"if significant probative evidence was not credited or simply ignored." Morris v. Sec y of HHS,
No. 86-5875, 1988 WL 34109, at *2 (6th Cir. April18, 1988) (citations omitted). While an ALJ
need not provide a "written evaluation of every piece of testimony and evidence submitted ... a
minimal level of articulation of the ALJ' s assessment of the evidence is required in cases in
which considerable evidence is presented to counter the agency's position." !d. (citations
omitted). The ALJ's failure to acknowledge Dr. Spadafora's report and to articulate any reasons
for rejecting the report is reversible error.
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------------------------

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The Commissioner also argues that the evidence does not establish disabling mental
impairments, citing to the ALJ' s findings that suggested improvement in plaintiffs functioning
over time, noting plaintiff was "less depressed, less agitated/irritable" (Tr. 19, citing Tr. 681December 2007), that her mood was generally described as "fairly stable" (Tr. 19, citing Tr. 665,
May 2008, Tr. 668-April2008), and that plaintiff reported her anxiety had "improved" in January
2010. (Tr. 19, citing Tr. 832). Yet, "improved" and "stable" are relative terms that cannot be
viewed without context in assessing mental health impairments. For example, in December
2009, plaintiff reported her nerves were "out of control" and she was "picking at her skin." Her
mental status exam showed she was anxious and fidgety. Plaintiff was "rescreened for bipolar
affective disorder" and was found to be "grossly positive on mood disorder questionnaire." She
was started on Risperdal. (Tr. 852-54). In January 2010, the date the ALJ noted "improvement,"
plaintiff reported she was "feeling better" and "doing less picking at her skin; Stresses are the
same but seems to be a bit better on Risperdal." (Tr. 19, citing Tr. 832). While Dr. Evans noted
some improvement of plaintiffs anxiety, the clinical note reflects that plaintiffs anxiety was still
symptomatic. "Under the ALJ's logic, any improvement in one's mood, regardless of how small
and from what level the individual improved, would defeat a claim of mental impairment. This
cannot be so." Boulis-Gasche v. Comm 'r ofSoc. Sec., 451 F. App'x 488, 494 (6th Cir. 2011).
Moreover, without the Central Clinic records discussed above, there is an incomplete picture of
plaintiffs functioning.
Finally, the ALJ erred by giving significant weight to the non-examining state agency
psychological consultant who opined plaintiff had mild to moderate limitations and noted that
plaintiff had not "even been treated for an extended period, despite her history of mental
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problems." (Tr. 20, citing Tr. 384). However, the state agency reviewer rendered his opinions in
December 2007 based on an incomplete medical record and shortly after Dr. Carrier diagnosed
plaintiff with a mood disorder in October 2007. The evidence indicates that contrary to the
agency reviewer's comment, plaintiff did engage in "an extended period" of treatment for her
mental impairments, albeit after the consultant reviewed the record. The Court recognizes that
an opinion from a non-examining source, such as a state agency consultant, may "in appropriate
circumstances" be given greater weight than that of an examining or treating source. Social
Security Ruling 96-6p, 1996 WL 374180, at *3. However, where, as here, much ofthe evidence
of plaintiffs mental impairments post-dates the reviewer's opinion and the ALJ nonetheless
credits the state agency reviewer's opinion, the ALJ must acknowledge that fact and provide
sufficient reasons for doing so to enable the Court to engage in meaningful judicial review. Cf

Blakley, 581 F.3d at 409 (where ALJ credits non-examining source opinion who was without
opportunity to review subsequent reports and records of consulting and treating physicians, court
requires "some indication that the ALJ at least considered these facts before giving greater
weight to an opinion that is not 'based on a review of a complete case record."') (citing Fisk v.
Astrue, 253 F. App'x 580, 585 (6th Cir. 2007) (quoting Soc. Sec. Rul. 96-6p, 1996 WL 374180,

at *3)). The ALJ's failure to do so in this case mandates a reversal and remand for further
proceedings.

3. The ALJ's credibility finding.
The ALJ's credibility finding similarly suffers from the ALI's factual errors and
incomplete record as explained above. In support of his credibility finding, the ALJ cited, inter

alia, plaintiffs alleged noncompliance with medication and treatment regimens and the
20

inconsistency between plaintiffs alleged limitations and the medical evidence of record. As the
medical record upon which the ALJ relied is incomplete (in the absence of the Central Clinic
records) and was in parts ignored (Dr. Spadafora's consultative examination report, Dr. Carrier's
2007 clinic notes, and Dr. Evans' June 2010 report), the ALJ's credibility finding is not
supported by substantial evidence and should be reversed. Plaintiffs credibility should be reexamined in connection with the ALJ's review of the Central Clinic records, Dr. Evans' June
2010 opinion, Dr. Spadafora's examination, Dr. Carrier's 2007 clinic notes, and any further
medical evidence submitted on remand.

III. This matter should be reversed and remanded for further proceedings.
This matter should be reversed and remanded pursuant to Sentence Four of§ 405(g) for
further proceedings consistent with this Report and Recommendation. Remand is appropriate if
the Commissioner applied an erroneous principle of law, failed to consider certain evidence,
failed to consider the combined effect of impairments, or failed to make a credibility finding.
Faucher v. Sec 'y of HHS, 17 F.3d 171, 176 (6th Cir. 1994). Here, all essential factual issues
have not been resolved in this matter, there is evidence not considered by the ALJ, and the
current record does not adequately establish plaintiffs entitlement to benefits as of her alleged
onset date. !d. at 176. In addition, while Dr. Carrier identified a psychiatric basis for plaintiffs
noncompliance with medications in 2007, the later records are not so clear. Dr. Evans' June
2010 report suggests that plaintiffs periodic noncompliance with diabetic treatment may be a
result of her mental impairments (Tr. 784). On remand, the ALJ should be directed to (1)
address and resolve the issue of whether plaintiffs periodic noncompliance with prescribed
treatment and medication regimen is a manifestation of her mental impairments in accordance
21

with the Social Security regulations and Social Security Ruling 82-59; (2) evaluate plaintiffs
credibility and the medical source opinions of record under the legal criteria applicable under the
Social Security Regulations and Rulings and as mandated by case law; (3) obtain and review
plaintiffs mental health treatment records from the Central Clinic; and (4) review the evidence
under the required five-step sequential evaluation process to determine anew whether plaintiff
was under a disability and thus eligible for DIB and/or SSI.

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and REMANDED for further
proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).

Date:

~~

zit ~~13
•

Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1:12-cv-94
Barrett, J.
Litkovitz, M.J.

TONYAM. SHORT,
Plaintiff,
vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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