Hammock v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Mary I. Hammock: IT IS RECOMMENDED THAT: (1) The decision of the Commissioner to deny Plaintiff DIB benefits should be REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g); (2) Co nsistent with this R&R, the ALJ should reevaluate: a) the weight to be given to each treating source opinion; and b) Plaintiff's credibility, including but not limited to her allegation that she suffers from frequent panic attacks. (3) As no further matters remain pending for the Court's review, this case should be CLOSED. Objections to R&R due by 5/9/2013. Signed by Magistrate Judge Stephanie K. Bowman on 4/22/13. (mtw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARY I. HAMMOCK,

Case No. 1:12-cv-250

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Mary I. Hammock filed this Social Security appeal in order to challenge
the Defendant’s finding that she is not disabled. See 42 U.S.C. §405(g). Proceeding
through counsel, Plaintiff presents two claims of error for this Court’s review.

As

explained below, the ALJ’s finding of non-disability should be REVERSED, because it is
not supported by substantial evidence in the administrative record.
I. Summary of Administrative Record
Plaintiff filed an application for disability insurance benefits (“DIB”) in February
2009, alleging a disability onset date of December 12, 2008 due to a combination of
physical and mental impairments. After her application was denied initially and on
reconsideration, she requested a hearing de novo before an Administrative Law Judge
(“ALJ”). On November 19, 2010, an evidentiary hearing was held before ALJ Robert W.
Flynn. Plaintiff appeared with counsel and provided testimony; a vocational expert also

1

provided testimony. (Tr. 25-68). On December 10, 2010, the ALJ denied Plaintiff’s
application in a written decision. (Tr. 11-20).
Plaintiff’s last insured date was June 30, 2011. Therefore, she must show that
she became disabled on or before that date. The record reflects that Plaintiff was 24
years old on her alleged disability onset date. She completed her high school degree
and attended college for two years at Miami University, studying early childhood
education.
Plaintiff performed no substantial gainful activity between her claimed onset date
through the date last insured.

The ALJ determined that Plaintiff had the following

severe impairments: arthritis, psoriasis, obesity, degenerative joint disease status post
meniscal tear of the knees, depressive disorder, generalized anxiety disorder,
headaches, and panic disorder. (Tr. 13).

However, the ALJ determined that none of

Plaintiff’s impairments, alone or in combination, met or medically equaled one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13).
Plaintiff stands at 5 foot 2 inches, and is morbidly obese, weighing 256 pounds.
(Tr. 32).

She testified that she was fired from her last job as a pre-school assistant

teacher, because she was unable to physically perform the requirements of the position,
primarily due to her arthritis. (Tr. 34-35). However, her termination letter also refers to
her stress level (Tr. 246). Plaintiff’s disability application explains that she believes she
is disabled, in part, because “chronic pain” and arthritis combined allow her to “barely
move.” (Tr. 156). In addition, she wrote: “My weight limits the type of work I could do. I
have anxiety, and panic attacks. My allergies cause severe headaches.” (Id.). On
2

another form, Plaintiff alleges “extreme pain, weakness and fatigue” and limited mobility.
(Tr. 181). She assesses her pain level as an “8” out of 10 on a “good day,” of which she
alleges only 2 days per week, but as “10” out of 10 on a “bad day.” (Tr. 182). In a
typical day, she describes showering, dressing, cleaning, cooking and preparing meals,
doing laundry, watching TV, and caring for her dog (including walks) (Tr. 189, 191).
She reports shopping for groceries and personal care products, watching movies,
playing cards, and going to car races. (Tr. 191-192).
The ALJ determined that Plaintiff retained the residual functional capacity to
perform a limited range of sedentary work, described as follows:
[S]he needs to avoid climbing ladders/ropes and scaffolds. The claimant
can occasionally climb stairs and ramps, can occasionally balance, stoop
and crouch, can frequently reach overhead, handle and finger, and should
avoid kneeling and crawling. In addition the claimant can sustain
moderate exposure to excessive or unexpected noises, and should avoid
concentrated …exposure [to] extreme cold, irritants such as fumes, dust,
odors and gases, poor ventilation, unprotected heights and moving
machinery. The claimant retains the mental capacity for simple, routine
and repetitive tasks that are unskilled and require low stress work in an
environment that is free of fast pace and has few, if any work place
changes, no interaction with the general public, occasional contact with
coworkers and supervisors, and requires no tandem tasks with coworkers.
(Tr. 15).
The ALJ found that Plaintiff could not perform her past relevant work as a
teacher’s aide, dry cleaning associate, or office manager. (Tr. 18). However, the ALJ
found that Plaintiff could perform other jobs that exist in significant numbers in the
national economy, based upon her age, education, work experience, and RFC. The
vocational expert testified that among the jobs that Plaintiff would be able to perform
3

were occupations such as inspector or sorter. (Tr. 19). For those reasons, the ALJ
determined that Plaintiff was not under a disability. (Tr. 19). The Appeals Council
denied Plaintiff’s request for review.

Therefore, the ALJ’s decision stands as the

Defendant’s final determination. On appeal to this Court, Plaintiff contends that the ALJ
erred (1) by failing to give controlling weight to the opinions of treating physicians and
Plaintiff’s psychologist; and (2) in negatively assessing Plaintiff’s credibility.
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability” within the
definition of the Social Security Act.

See 42 U.S.C. §1382c(a).

Narrowed to its

statutory meaning, a “disability” includes only physical or mental impairments that are
both “medically determinable” and severe enough to prevent the applicant from (1)
performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See Bowen v. City of New York, 476
U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the
court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal
quotation omitted). In conducting this review, the court should consider the record as a
whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence
4

supports the ALJ’s denial of benefits, then that finding must be affirmed, even if
substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion.
. .. The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from
the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.
Id. (citations omitted).
In considering an application for supplemental security income or disability
benefits, the Social Security Agency is guided by the following sequential benefits
analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial
gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s
impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s
impairments, singly or in combination, meet or equal a Listing in the Listing of
Impairments; at Step 4, the Commissioner determines whether or not the claimant can
still perform his or her past relevant work; and finally, at Step 5, if it is established that
claimant can no longer perform his past relevant work, the burden of proof shifts to the
agency to determine whether a significant number of other jobs which the claimant can
perform exist in the national economy. See Combs v. Com’r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.
B. Plaintiff’s Statement of Errors
In this case, Plaintiff asserts that the ALJ erred: (1) by failing to give controlling
weight to two treating physicians and Plaintiff’s treating psychologist, all of whom
5

offered opinions that supported a disability finding; and (2) by finding Plaintiff’s
statements to be “not credible” to the extent that they were inconsistent with the RFC
determined by the ALJ.

The asserted errors impact both Steps 4 and 5 of the

sequential analysis.
1. The Weight Given to Plaintiff’s Treating Physicians
a. Relevant Standards
The relevant regulation concerning the opinions of treating physicians, 20 C.F.R.
§404.1527(c)(2), provides: “[i]f we find that a treating source’s opinion on the issue(s) of
the nature and severity of your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight.” Id.; see also
Warner v. Com’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The treating physician
rule requires “the ALJ to generally give greater deference to the opinions of treating
physicians than to the opinions of non-treating physicians.”

See Blakley v. Com’r of

Social Security, 581 F.3d 399, 406 (6th Cir. 2009).
The reasoning behind the rule has been stated as follows:
[T]hese sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of the claimant's medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.
Wilson v. Com’r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)(quoting former 20
C.F.R. § 404.1527(d)(2)).

6

Despite the presumptive weight given to the opinions of the treating physician, if
those opinions are not “well-supported” or are inconsistent with other substantial
evidence, then the opinions need not be given controlling weight. Soc. Sec. Ruling 962p, 1996 WL 374188, at *2 (July 2, 1996). In such cases, the ALJ should review
additional factors to determine how much weight should be afforded to the opinion, such
as “the length of the treatment relationship and the frequency of examination, the nature
and extent of the treatment relationship, supportability of the opinion, consistency of the
opinion with the record as a whole, and any specialization of the treating physician.”
Blakley, 581 F.3d at 406; see also 20 C.F.R. §404.1527(c)(2).
When the treating physician’s opinion is not given controlling weight, the ALJ
must provide “good reasons” for doing so. Id. Good reasons “must be supported by the
evidence in the case record, and 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." Blakley, 581 F.3d at 406-407; see also Soc.
Sec. Rul. 96-2p. An ALJ’s failure to provide an adequate explanation for according less
than controlling weight to a treating source may only be excused if the error is harmless
or de minimis, such as where “a treating source’s opinion is so patently deficient that the
Commissioner could not possibly credit it.” Blakley, 581 F.3d at 409 (quoting Wilson,
378 F.3d at 547).
On the record presented, Plaintiff argues that the ALJ erred by failing to give the
opinions of three different treating sources “controlling weight,” and by failing to give
“good reasons” for rejecting their opinions. The Court agrees that the ALJ failed to
7

provide a sufficiently detailed explanation for the weight he gave to the treating sources
in this case. Although the harmlessness of the error in this case presents a close
question, the undersigned concludes that remand is required, precisely because
whether the treating sources’ opinions were “patently deficient” is fairly debatable on the
record presented.
b. Analysis of the Opinions of Drs. Hunter, Ahmed, and Zarnowiecki
Dr. Theodore Hunter is Plaintiff’s primary care physician, and has treated Plaintiff
for virtually all of the ailments that the ALJ found to be “severe” under Step 2 of the
sequential analysis. In February 2009, Dr. Hunter completed an RFC assessment 1 that
refers to diagnoses of Plaintiff’s arthritis in her knees, hips, shoulders, wrists and
fingers, her obesity, her seasonal rhinitis, psoriasis, and her generalized anxiety with
panic attacks. (Tr. 267). Presumably on the basis of those multiple diagnoses, he
opines that Plaintiff cannot stand for more than 15 minutes, and can only sit for one
hour. (Tr. 268). The form reflects that Plaintiff can stand/walk for not more than 2 hours
intermittently throughout a workday and for no longer than 15 minutes at a time, but also
states (contradictorily) that she cannot sit or stand at all. Dr. Hunter opines that Plaintiff
cannot lift any weight at all (not even up to 5 pounds), and that her impairments are
expected to last longer than 12 months. (Tr. 268). The ALJ succinctly rejected the
2009 assessment, giving the opinions “little weight because they clearly overstate the
claimant’s limitations as evidenced by the medical and objective findings.” (Tr. 17). The
ALJ rationalized that the RFC that the ALJ found “allows for significant limitations in

1

The signature on the form is illegible, but both Plaintiff and Defendant agree, for purposes of this

8

postural and functional activities, which are more consistent with the medical record as
a whole.” (Tr. 17).
In November 2010, Dr. Hunter completed a second RFC assessment that opined
that Plaintiff suffers from “marked” mental limitations in carrying out detailed instructions
and in working with others. (Tr. 400). In addition, in 2010 Dr. Hunter opined that
Plaintiff is unable to stand for more than 15 minutes, to sit for more than 30 minutes,
that she needs to elevate her legs “most” of the time, and that she cannot work for more
than one hour in an 8-hour day. (Tr. 400). The ALJ also rejected Dr. Hunter’s 2010
RFC opinions. The ALJ explained that the opinions were entitled to “little weight based
on Dr. Hunter’s treatment, which has been conservative, and his conclusions in his
treating notes that the claimant’s anxiety, psoriasis and arthritis were stable.” (Tr. 18).
The second treating physician whose opinion the ALJ rejected was Plaintiff’s
orthopedist, Dr. Ahmed, who treated Plaintiff from July through September 2010
following a fall. Dr. Ahmed performed arthroscopic knee surgery on both of Plaintiff’s
knees on July 20, 2010, and saw her post-operatively for follow up care. Post-surgery
in November 2010, Dr. Ahmed completed a physical RFC form. Dr. Ahmed opined that
Plaintiff could only sit for two hours at a time. (Tr. 396).

In a section of the form

inquiring the total number of hours his patient could work in a day, he circled “None” due
to Plaintiff’s physical conditions (Tr. 396); however, the form opines that Plaintiff is “not
significantly impaired” in any psychiatric capacity. Dr. Ahmed’s opinions appear to be
based solely upon his assessment of Plaintiff’s existing knee impairment and his belief

appeal, that Dr. Hunter appears to have been the author.

9

that she will require knee replacement in the future, as no other medical conditions are
listed or discussed. (Tr. 396-397). The ALJ dismissed Dr. Ahmed’s opinions in tandem
with his rejection of the 2009 opinions of Dr. Hunter – on grounds that they “clearly
overstate the claimant’s limitations as evidenced by the medical and objective findings,”
and that the postural limitations determined by the ALJ “allow[ ] for significant limitations
in postural and functional activities, which are more consistent with the medical record
as a whole.” (Tr. 17).
The ALJ never explains any medical basis for his independent determination of
Plaintiff’s postural limitations.

Nor does the ALJ explicitly rely upon any consulting

medical source for the physical portion of Plaintiff’s RFC. While he notes the existence
of two agency consulting opinions that “there are no severe physical impairments,” he
also finds that those opinions are “not supported by subsequent examination and
objective findings,” and therefore gives them only “some weight.” (Tr. 17). Indeed, the
ALJ recognizes that Plaintiff’s treating rheumatologist, Dr. Greenblatt, noted
“radiological evidence of tricompartmental osteoarthritic changes bilaterally.” (Tr. 16).
The third and last treating source opinion that the ALJ considered was that of
Plaintiff’s clinical psychologist, Susan Zarnowiecki, Ph.D. Dr. Zarnowiecki completed a
mental RFC form on November 17, 2010 in which she indicated that Plaintiff was
“moderately impaired” in her abilities to understand, remember and carry out detailed
instructions, to work with others, to interact appropriately with the general public, and to
accept supervision. In the narrative “comments” section, Dr. Zarnowiecki wrote:
Mary was seen for outpatient psychotherapy 13x from 9/09 through 4/10.
She was on multiple medications for pain (arthritis and psoriasis). I
10

treated her for depression, panic attacks, and family conflicts. There were
interruptions in therapy due to insurance issues/lapses. In my opinion, it
would be difficult for Mary to manage job demands. I cannot comment on
Medical Assessment details.
She regularly complained of pain,
sometimes being unable to leave her house. No testing was done.
(Tr. 399).
The ALJ gave Dr. Zarnowiecki’s opinion “some weight since it was based on a
treating relationship and does not indicate significant/severe mental health limitations.”
(Tr. 18). However, the ALJ rejected as “conclusory” the portion of Dr. Zarnowiecki’s
opinion that suggested it would be “difficult for the claimant to manage job demands.”
(Id.). The ALJ did not specifically discuss any inconsistencies between Dr.
Zarnowiecki’s opinions and the mental health assessment completed by consulting
examiner Dr. Chiappone, but nonetheless determined that Dr. Chiappone’s opinions
were entitled to “great weight.”

In contrast to Dr. Zarnowiecki, the ALJ found Dr.

Chiappone’s opinions to be “well supported by the limited clinical findings, the claimant’s
stable symptoms with medication and her activities of daily living, which indicate a
greater level of functioning than alleged by the claimant.” (Tr. 17).
c. Remand Required Due to Failure to Provide “Good Reasons”
The undersigned concludes that remand is required based upon the ALJ’s failure
to provide sufficiently detailed reasons for rejecting the opinions of Plaintiff’s treating
physicians prior to formulating Plaintiff’s physical and mental RFC.

For example, with

respect to the ALJ’s rejection of Dr. Hunter’s 2010 opinions, Plaintiff persuasively
argues that commentary that a patient’s condition is “stable” tells almost nothing about
the limitations caused by that condition.

A quadriplegic person might have a “stable”
11

medical condition but still be rendered physically disabled under applicable guidelines.
In fact, at least one of Dr. Hunter’s notes reflects that Plaintiff’s anxiety level is
“unchanged” and as a result increases her psychiatric medication, suggesting that her
arguably “stable” condition is severe enough to require additional treatment. (Tr. 392).
Nor does the ALJ’s conclusion that Dr. Hunter has treated Plaintiff
“conservatively” –standing alone and without explanation – provide a sufficient basis on
which to reject his opinions. Defendant acknowledges that the ALJ fails to explain what
is meant by the reference to “conservative treatment,” but argues that the ALJ implicitly
must have considered Dr. Hunter’s records as a whole in rejecting his opinions
concerning both Plaintiff’s mental limitations (which Dr. Hunter described as “marked” in
some areas) and her physical limitations. Defendant suggests that the ALJ could have
rejected Dr. Hunter’s mental limitations because he is not a mental health specialist.
(Doc. 12 at 12). However, that basis was not articulated by the ALJ. In general (with the
exception of the harmless error standard), it is inappropriate for this Court to affirm on
grounds not articulated by the ALJ. The ALJ’s broad reference to the record as a
whole, without specific discussion of why he considered Dr. Hunter’s opinions to be not
supported by that record, does not satisfy the “good reasons” standard. In addition, the
ALJ’s apparent failure to recognize that the 2009 RFC form was authored by Dr. Hunter
requires remand, because the ALJ does not appear to have adequately considered that
opinion as originating from a treating source.
The rejection of Dr. Ahmed’s opinions also requires further analysis on remand,
in part because the ALJ never explains precisely which “medical and objective findings”
12

provide a basis for rejection.

The Defendant suggests that by limiting Plaintiff to

sedentary work, the ALJ adequately accommodated Plaintiff’s limitations. However, the
ALJ never explains the basis for the postural limitations that he imposes, as opposed to
the postural limitations suggested by Plaintiff’s treating physicians.
Defendant argues that the ALJ’s reasons were adequately articulated, based
upon the ALJ’s fleeting reference to clinical examination records that reflected
essentially normal findings. (Tr. 16-18). Defendant contends that the ALJ’s allusion to
those records, in a portion of the opinion that precedes the summary rejection of Dr.
Hunter’s and Dr. Ahmed’s opinions (Tr. 16), is sufficient to support the determination
that the opinions “overstate[d] the claimant’s limitations as evidenced by the medical
and objective findings.” (Tr. 17). Defendant notes that a number of Dr. Hunter’s clinical
records fail to include any specific findings regarding Plaintiff’s physical limitations.
Likewise, following her knee surgeries, one of Dr. Ahmed’s records documents
improvement, noting that Plaintiff had a good range of motion. (Tr. 368).
The difficulty with Defendant’s argument is that the ALJ’s analysis falls well short
of the level of detail or specificity suggested by Defendant in this appeal. Additionally,
Plaintiff’s medical records do not unequivocally support the ALJ’s decision as Defendant
implies.

(See, e.g., Tr. 384, reporting arthritis as “still hurting” and inability to see

rheumatologist due to lack of insurance; Tr. 391, listing significant pain medications,
reporting increase in post-surgical knee pain after cortisone shot; Tr. 361, 365, 366,
reflecting decreased range of motion; Tr. 328, noting decreased range of motion in
shoulders and knees). While a portion of the ALJ’s decision briefly alludes to a handful
13

of records, the ALJ’s rejection of the treating physicians’ opinions (one of which is
seemingly not recognized as from Dr. Hunter) is extremely cursory, and not tied with
any specificity to the medical records.
Arguably, the ALJ’s more detailed analysis of Dr. Zarnowiecki’s mental limitations
comes closer to satisfying the “good reasons” standard than does his rejection of the
opinions of Drs. Hunter and Ahmed.

Dr. Zarnowiecki’s mental RFC opinions were

largely adopted by the ALJ, although the ALJ indicated that he more heavily relied upon
the opinions of state agency psychologists and the opinion of Dr. Chiappone. 2 The
latter opined that Plaintiff was only moderately impaired in her abilities to maintain
concentration and attention, and to relate to co-workers, supervisors and the public.
(Tr. 16, 18).
Plaintiff argues that Dr. Zarnowiecki should have been recontacted to determine
what she meant by opining that “it would be difficult for Mary to manage job demands,”
but the undersigned does not agree. That particular “opinion” does not profess that
Plaintiff cannot work at all, but only that Plaintiff would experience some “difficult[y].” An
ALJ is required to re-contact a treating source only when records are inadequate to
determine disability. See Ferguson v. Com’r of Soc. Sec., 628 F3d 269, 274 n.2 (6th
Cir. 2010)(citing 20 C.F.R. §404.1512(e)). That was not the case here. On the other
hand, the record is somewhat ambiguous concerning whether Dr. Zarnowiecki’s
“opinion” about Plaintiff’s difficulty in managing “job demands” was in reference to

2

Plaintiff argues that Dr. Chiappone’s assessment of Plaintiff’s Global Assessment of Functioning
(“GAF”) score of 51 was consistent with more severe mental limitations than determined by the ALJ. This
argument is unpersuasive, because it relies upon a lower GAF score range of 41-50, and because the

14

Plaintiff’s alleged panic attacks. The record also is unclear as to whether the ALJ fully
considered the impact of that particular symptom.
A treating physician’s opinion that is not “well-supported” is not entitled to
controlling weight, but the ALJ’s analysis here – particularly with respect to the opinions
of Drs. Hunter and Ahmed- is simply too cursory to satisfy the “good reasons” standard.
Having determined that the analysis does not satisfy the “good reasons” standard, this
Court must determine whether the error was harmless, to the extent that the opinions
themselves were “so patently deficient that the Commissioner could not possibly credit”
them. Blakley, 581 F.3d at 409 (quoting Wilson, 378 F.3d at 547).

Although the

records cited by Defendant counter the opinions rendered by Drs. Ahmed and Hunter,
as the undersigned has already noted, other records are more supportive. Therefore,
and mindful of the strong emphasis that the Sixth Circuit has placed upon the “good
reasons” standard, see Rogers v. Com’r of Soc. Sec., 486 F.3d 234, 242-243 (6th Cir.
2007), the undersigned concludes that this is not a case in which all three treating
source opinions rejected by the ALJ are so “patently deficient” as to render any error
harmless. Accordingly, remand is required. Because remand is already required for
further explanation of the ALJ’s rejection of the physical limitations proffered by
Plaintiff’s two treating physicians, the ALJ also will be directed to reconsider the impact
of Plaintiff’s alleged panic attacks in the context of Plaintiff’s ability to manage job stress
and/or the demands of the workplace.

GAF score is not the sine qua non in the context of determining disability. See Howard v. Com’r of Soc.

15

2. Credibility Assessment
In her second claim of error, Plaintiff contends that the ALJ improperly evaluated
her credibility.

An ALJ’s credibility assessment must be supported by substantial

evidence, but “an ALJ’s findings based on the credibility of the applicant are to be
accorded great weight and deference, particularly since an ALJ is charged with the duty
of observing a witness’s demeanor and credibility.” Walters v. Com’r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997). Further, a credibility determination cannot be disturbed
“absent a compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus,
it is proper for an ALJ to discount the claimant’s testimony where there are
contradictions among the medical records, her testimony, and other evidence. Warner
v. Com’r of Soc. Sec., 375 F.3d at 387, 392 (6th Cir. 2004). However, while an ALJ is
free to resolve issues of credibility as to lay testimony, or to choose between properly
submitted medical opinions, he is not permitted to make his own evaluations of the
medical findings. As recognized by this Court, “[t]he ALJ must not substitute his own
judgment for a doctor’s conclusion without relying on other medical evidence or
authority in the record.”

Mason v. Com’r of Soc. Sec., No. 1:07-cv-51, 2008 WL

1733181, at * 13 (S.D. Ohio April 14, 2008) (Beckwith, J; Hogan, M.J,, citing Hall v.
Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963)).
Here, Plaintiff complains that in contrast even to Dr. Chiappone, the ALJ
determined that Plaintiff’s reported symptoms were “not credible.” Dr. Chiappone noted
that Plaintiff “appeared motivated” to participate in the consulting evaluation, “put forth

Sec., 276 F. 3d 235, 241 (6th Cir. 2002).

16

good effort and persistence” and “did not appear to exaggerate or minimize her
complaints.” (Tr. 271). Dr. Chiappone specifically noted Plaintiff’s report of daily panic
attacks “during which she sweats and sometimes…vomits,” and opined that Plaintiff’s
reported history “appeared to be accurate, credible and consistent.” (Id.).
Another non-examining consultant, Mel Zwissler, Ph.D., also noted that Plaintiff
had been diagnosed with panic disorder, and that Plaintiff’s symptoms “may become
exacerbated when faced with stressors.” (Tr. 293). On that basis Dr. Zwissler indicated
that Plaintiff “would perform best in an environment that is void of strict time and
production standards.” (Id.). Dr. Zwissler, like Dr. Chiappone, pronounced Plaintiff’s
statements regarding her symptoms to be “credible.” (Id.).
Notwithstanding the assessments of Drs. Chiappone and Zwissler, the ALJ found
that the record does not substantiate Plaintiff’s reports that she suffers from daily panic
attacks. (Tr. 17). The Defendant argues that the ALJ’s conclusion can be affirmed
based upon the lack of reference to “daily panic attacks” in most of Plaintiff’s records.
However, while not described as a “daily” occurrence, Dr. Hunter’s records contain
multiple references to Plaintiff’s panic attacks and associated psychological symptoms.
(See, e.g., Tr. 371, noting panic attacks three times per week; Tr. 384, noting panic
attacks “worse”; Tr. 391, noting continued “outbursts” and lack of treatment due to
insurance coverage; Tr. 392, prescribing increase in paxil due to anxiety level). The
ALJ appears to have dismissed not only Plaintiff’s report of “daily” panic attacks, but the
possibility that Plaintiff suffers from such attacks at all. Without discussing any specific
evidence relating to her panic attacks, the ALJ simply states: “The claimant alleged
17

daily panic attacks…[but] the record does not support her allegation.” (Tr. 17).
The Defendant concedes the notation that Plaintiff reported panic attacks
occurring three times per week to Dr. Hunter, but argues that “this reduced level of
panic attacks also lacks support.” (Doc. 12 at 18). However, the ALJ failed to cite any
medical evidence to support his conclusion that Plaintiff does not suffer from panic
attacks. It is inappropriate for this Court to speculate on the basis for the ALJ’s decision
in light of his failure to discuss relevant medical records, particularly in light of the
vocational expert’s testimony in this case that panic attacks of “more than once or twice
a month” would present an “insurmountable work problem.”

(Tr. 65-66, emphasis

added).
In sum, a close review of the record confirms some inconsistencies between
Plaintiff’s complaints of disabling pain and weakness, and incapacitating anxiety and
depression, and her report of daily activities and treatment records. However, remand
is required because other records support the opinions offered by three treating
sources, and ultimately provide at least some support for Plaintiff’s claim. While this is
not a case in which an award of benefits is clearly required, this Court cannot simply
ignore the ALJ’s failure to adequately explain the rationale for his decision.
III. Conclusion and Recommendation
A sentence four remand under 42 U.S.C. § 405(g) provides the required relief in
cases where there is insufficient evidence in the record to support the Commissioner’s
conclusions and further fact-finding is necessary. See Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citations omitted). In a sentence four
18

remand, the Court makes a final judgment on the Commissioner’s decision and “may
order the Secretary to consider additional evidence on remand to remedy a defect in the
original proceedings, a defect which caused the Secretary’s misapplication of the
regulations in the first place.” Faucher, 17 F.3d at 175.
For the reasons explained herein, IT IS RECOMMENDED:
1. The decision of the Commissioner to deny Plaintiff DIB benefits should be
REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g);
2. Consistent with this R&R, the ALJ should reevaluate: a) the weight to be given
to each treating source opinion; and b) Plaintiff’s credibility, including but not limited to
her allegation that she suffers from frequent panic attacks.
3. As no further matters remain pending for the Court’s review, this case should
be CLOSED.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

19

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARY I. HAMMOCK,

Case No. 1:12-cv-250

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law
in support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN (14) DAYS after being served with a copy of those objections. 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).

20