Iames v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Plaintiff Stacy Iames. It is RECOMMENDED that the decision of the Commissioner to deny Plaintiff DIB benefits be REVERSED and this matter be REMANDED under sentence four of 42 USC Section 405(g) consistent with the Report and Recommendation. As no further matters remain pending for the Court's review, this case be CLOSED. Objections to R&R due by 1/9/2014. Signed by Magistrate Judge Stephanie K. Bowman on 12/23/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STACEY IAMES

Case No. 1:12-cv-829

Plaintiff,

Dlott, J.
Bowman, M.J.

vs.

CAROLYN W. COLVIN, acting
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Stacey Iames filed this Social Security appeal in order to challenge the
Defendant's determination that she is not disabled. See 42 U.S.C. § 405(g). Proceeding
through counsel, Plaintiff presents two claims of error, both of which the Defendant
disputes. As explained below, I conclude that the ALJ's finding of non-disability should be
REVERSED and REMANDED because it is not supported by substantial evidence in the
administrative record.
I. Summary of Administrative Record
Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income Benefits (“SSI”) in March 2009, alleging a disability onset date of August
1, 2006 due to physical and mental impairments. After Plaintiff's applications were denied
initially and upon reconsideration, she requested a hearing de novo before an
Administrative Law Judge (“ALJ”). An evidentiary hearing was held in December 2010, at
which Plaintiff was represented by counsel. At the hearing, ALJ Gilbert Sheard heard
testimony from Plaintiff and an impartial vocational expert, Vanessa Harris. On September

8, 2010, the ALJ denied Plaintiff’s applications in a written decision. (Tr. 41-50). Plaintiff
now seeks review of the ALJ’s decision.
The record reflects that Plaintiff was 30 years old on her alleged onset date. She
graduated from high school and completed two years of nursing school. She has past
relevant work as a nurse.
Based upon the record and testimony presented at the hearing, the ALJ found that
Plaintiff has the following severe impairments: “right knee derangement status-post
surgery, a post traumatic stress disorder, a panic disorder, and depression.” (Tr. 42). The
ALJ determined that none of Plaintiff's impairments alone, or in combination, met or
medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1. Id. Rather, the ALJ determined that Plaintiff retained the residual functional capacity
(“RFC”) to perform a range of sedentary work, described as follows:
She cannot understand, remember, and carry out complex job instructions.
She cannot understand, remember, and carry out detailed, but not complex,
job instructions. Due to difficulties maintaining attention and concentration
and pace for extended periods, the job must be routine and repetitive, and
be far enough from others to reduce distractions, and not require intense
focused attention until the next scheduled break, and have no assembly line
type of work which forces an inflexible pace. Due to difficulties with coworkers, she cannot work as part of a close-knit team, but must be doing her
own work in her own workstation; there will be other people around, but she
must just be doing her own thing. Her ability to complete a normal workday
and workweek without interruptions from psychologically based symptoms
and ability to perform at a consistent pace without an unreasonable number
and length of rest periods is impaired but not precluded. She cannot work
directly with the general public. Due to difficulties responding appropriately
to changes in a work setting, give her a job which does not change
frequently. She will miss an average of one day per month from work to be
home to take care of her ailments. She needs to occasionally catch her
breath after a panic attack. The job itself must be inherently not stressful.
She has less than average memory. For this reason, keep the work routine
and repetitive. She must be allowed to go sit down or lie down out of the way
at lunch time only, but the employer does not have to affirmatively supply
2

anything; just leave her alone to do her own thing as best she can with the
facilities on hand at lunch time.. She needs to use the bathroom immediately
before work starts and immediately after work, also during regular breaks,
and also occasionally for short breaks during work times.
(Tr. 45-46).
Based upon the record as a whole, including testimony from the vocational expert,
and given Plaintiff's age, education, work experience, and RFC, the ALJ concluded that,
while Plaintiff is unable to perform her past relevant work, a job (edible nut sorter) existed
in significant numbers in the national economy that Plaintiff could perform. (Tr.48-49). The
ALJ determined that Plaintiff was not under disability, as defined in the Social Security
Regulations, and not entitled to DIB and or SSI. Id.
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
argues that the ALJ erred by: (1) failing to properly evaluate all of Plaintiff’s impairments and
incorporate such impairments into her RFC; (2) failing to appropriately weigh the medical
opinions in the record; and (3) selectively relying on Plaintiff’s daily activities in his credibility
assessment. Upon close inspection, the undersigned finds that Plaintiff’s assignments of
error are well-taken.
II. Analysis
A. Judicial Standard of Review
To be eligible for SSI or DIB a claimant must be under a “disability” within the
definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition
of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City of
New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory meaning, a “disability”
3

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, 476 U.S. at 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 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 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

4

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 or her 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.
Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520,
416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits
must present sufficient evidence to show that, during the relevant time period, he or she
suffered an impairment, or combination of impairments, expected to last at least twelve
months, that left him or her unable to perform any job in the national economy. 42 U.S.C.
§ 423(d)(1)(A).
B. The ALJ’s Decision is not Substantially Supported and should be Reversed
1. Relevant Evidence
The record indicates that Plaintiff suffers from post traumatic stress disorder (“PTSD”)
(Tr. 396-401, 437-443, 506-521); migraine headaches (Tr. 444-476); irritable bowel
syndrome (IBS) with diarrhea (Tr. 379-395, 444-476); internal derangement of her right
knee, status post arthroscopic surgery in May 2008 (Tr. 324-337, 339-374); chronic low
back pain (Tr. 345, 446, 455); and fibromyalgia. (Tr. 444-476).
Plaintiff has developed PTSD as a result significant sexual and physical abuse which
began when she was a child. (Tr. 396-401, 437-443, 506-521). Plaintiff was initially treated
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for her psychiatric impairments by obtaining medications from her family physician, Dr.
Fabrey. (Tr. 444-476). However, in June 2010, Plaintiff began psychiatric treatment at
Centerpoint Health Center. (Tr. 506-521, 528-537).
The record also indicates that Plaintiff’s IBS with diarrhea is very much influenced by
her emotional state, such that her episodes of diarrhea increase as her levels of anxiety
increase. Plaintiff’s reports of the frequency of her diarrhea have been very consistent over
the years: generally speaking, she experiences 8-11 episodes per day, and these episodes
are accompanied by bloating, cramping, and urgency (Tr. 207, 381, 386, 397, 433, 438,
445, 449, 450, 459). Dr. Manegold, Plaintiff’s gastroenterologist, stated in November 2008
that “I get the sense, however, that [Plaintiff] is having some psychological decompensation
because of all the diarrhea and the fact that this limits her social life and interactions.” (Tr.
381).
Plaintiff was evaluated psychologically by Dr. Lester in April 2009. Dr. Lester opined
that Ms. Iames was only mildly impaired in her ability to maintain concentration, persistence,
and pace, and to withstand the stress and pressures of daily work activity. (Tr. 401).
Another consultative psychological evaluation was performed by Dr. Berg in
November 2009. (Tr. 437-443). Dr. Berg diagnosed Plaintiff with Panic Disorder without
Agoraphobia; Depressive Disorder, NOS, moderate with anxiety; and Trichotillomania, and
assigned a GAF score of 55. (Tr. 452). Dr. Berg opined that Plaintiff has moderate
limitations in relating to others; moderate limitations in maintaining attention, concentration,
persistence, and pace; and marked limitations in her ability to withstand the stress and
pressure of daily work activity. (Tr. 453).
In November 2010, Plaintiff's treating psychiatrist, Dr. Rahman, completed a mental
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impairment questionnaire for Plaintiff. (Tr. 538-543). In Dr. Rahman's professional medical
opinion, Plaintiff is unable to adequately perform many of the mental activities required for
competitive work. Id
In November 2010, Dr. Fabrey completed a Physical Residual Functional Capacity
Questionnaire wherein he opined that Plaintiff was limited to less than sedentary work. (Tr.
544-48). Dr. Fabrey listed Plaintiff’s diagnoses as PTSD, depression, anxiety, panic
disorder, insomnia, trichotillomania, right knee pain and IBS. Dr. Fabrey did not list any
clinical or objective signs supporting his findings.
2. Evaluation Plaintiff’s symptoms related to IBS
Plaintiff’s first assignment of error asserts that the ALJ erred by finding that Plaintiff’s
IBS with abdominal pain and diarrhea, her low back pain, and her headaches are “not
severe” impairments. As a result, Plaintiff contends that the ALJ’s RFC failed to properly
account for all of Plaintiff’s impairments. Upon close inspection, the undersigned agrees
that the ALJ’s RFC determination failed to properly evaluate Plaintiff’s IBS resulting
symptoms.
With respect to Plaintiff’s complaints regarding her abdominal pain and diarrhea
related to IBS, the record contains numerous citations to Plaintiff’s complaints of frequent
diarrhea. (Tr. 375-378, 379, 381, 382, 386, 450, 451, 456, 457, 459-460, 527). In
September 2006, Plaintiff reported to her family physician, Dr. Fabrey, that she had as many
as 11 loose stools per day. (Tr. 445). In 2007, Plaintiff twice told Dr. Fabrey that she had
frequent loose stools. (Tr. 449-450). The record further reveals that Plaintiff reported of
significant weight loss in early 2008, Plaintiff weighed approximately 180 pounds (See Tr.
453, 360) but only one year later, by early 2009, Plaintiff’s weight was down to
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approximately 150 pounds. (See Tr. 206, 457)
In November 2008, Plaintiff reported to Dr. Manegold that she had up to 10 loose
stools per day, her hemorrhoids were symptomatic, and that she had lost 30 pounds since
earlier that year.

(Tr. 381).

In 2009, Plaintiff attended three different consultative

examinations at the request of the Social Security Administration. (Tr. 396-401, 428-436,
437-443). At each consultative examination, Plaintiff reported that her loose stools occur
at an average of 11 times per day. (Tr. 397, 433, 438). In June 2009, Plaintiff told Dr.
Fabrey that her loose stools occurred at least 8 times per day. (Tr. 459).
The record also indicates that Plaintiff was prescribed numerous prescription
medications in an effort to control her IBS symptoms, including: Symax Cuotabs, Librax.
Elavil, Pamelor and Bentyl. Plaintiff complained of some improvement in her symptoms,
however, many of the medications caused excessive drowsiness. (Tr. 467)
As noted above, the ALJ found that Plaintiff’s suffers from the following severe
impairments: right knee derangement status-post surgery, a post traumatic stress disorder,
a panic disorder, and depression. The ALJ determined that Plaintiff’s IBS was not a severe
impairment. In this regard,the ALJ’s decision states in relevant part:
The claimant complains of gut pain and diarrhea. The undersigned finds that
this is a non-severe impairment due to a lack of objective medical evidence.
The treating physicians diagnosis of irritable bowel syndrome is a default or
spurious diagnosis.1 She does hurt, but she says that her treatment

1

In addition to this statement, at the administrative hearing, the ALJ referred to IBS as a “garbage
diagnosis.” Thus, it appears that the ALJ questioned the legitimacy of IBS (and its resulting symptoms) as
an actual medical condition. As such, the ALJ, in part, impermissibly acted as his own medical expert.
See Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir.1985); Kent v. Schweiker, 710 F.2d 110, 115 (3d
Cir.1983); Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir.1975). Moreover, despite the ALJ’s apparent
skepticism of IBS, courts have found IBS related symptoms to be disabling. See Alcock v. Comm'r of Soc.
Sec. Admin., 1:10-CV-6206-MA, 2011 WL 5825922 (D. Or. Nov. 16, 2011)(reversing ALJ decision and
remanding for an immediate award of benefits based upon plaintiff's consistent reports of experiencing

8

physician thinks it’s a mental symptom. The undersigned agrees, and allows
it as a symptom of post traumatic stress disorder.
(Tr. 42).
Pursuant to Social Security Regulations, once the ALJ determines a claimant has at
least one severe impairment, the ALJ must consider all impairments, severe and
non-severe, in the remaining steps of the sequential evaluation process. 20 C.F.R. §
404.1545(e).

If an ALJ considers all of a claimant's impairments (both severe and

non-severe) in determining the claimant's RFC, the ALJ's failure to characterize additional
impairments as "severe" is not reversible error. See Glenn v. Astrue, Case No. 3:09-cv-296,
2010 WL 4053548, at *14 (S.D. Ohio Aug. 13, 2010) (citing Maziarz v. Sec. of Health &
Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)).
Here, assuming, arguendo, that the ALJ properly determined that Plaintiff’s IBS
symptoms were not severe, he was required to consider those impairments in determining
Plaintiff’s RFC. Although the ALJ states that Plaintiff’s complaints related to IBS will be
considered as a symptom of post traumatic stress disorder, there is no indication from the
ALJ’s decision that he considered Plaintiff’s complaints of excessive and persistent diarrhea
in his RFC analysis. In his decision, the ALJ noted that Plaintiff complained of gut pain, but
did not find that the objective evidence fully supported her complaints. Notably absent from
the ALJ’s RFC analysis, however, is any discussion of Plaintiff’s IBS and complaints of
frequent diarrhea and any functional limitations associated thereto (i.e, frequent restroom
breaks, missed days, etc.).

severe, persistent, and sometimes unpredictable diarrhea and severe migraine headaches which prevent
her from sustaining competitive employment).

9

The ALJ’s failure to reference this evidence and/or provide any indication that such
evidence was considered prevents the Court from engaging in meaningful review of the ALJ’s
decision. See Morris v. Secretary of Health & Human Servs., Case No. 86-5875, 1988 WL
34109, at * 2 (6th Cir. Apr. 18, 1988) (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
1981) (when an ALJ fails to mention relevant evidence in his or her decision, “the reviewing
court cannot tell if significant probative evidence was not credited or simply ignored”)); see
also Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (The Court cannot uphold the
decision of an ALJ, even when there may be sufficient evidence to support the decision, if,
“the reasons given by the trier of fact do not build an accurate and logical bridge between the
evidence and the result”); Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (“[M]eaningful
appellate review requires the ALJ to articulate reasons for accepting or rejecting entire lines
of evidence”).
Here, the ALJ’s failure to properly consider and evaluate Plaintiff’s IBS symptoms
pursuant to Social Security Regulations prevents the Court from determining whether the
ALJ’s RFC is supported by substantial evidence. Accordingly, Plaintiff’s first assignment of
error should be sustained and this matter should be remanded for further fact-finding.
3. Evaluation of the Opinion Evidence
Plaintiff’s next assignment of error asserts that the ALJ improperly weighed the
medical opinion evidence. Specifically, Plaintiff asserts the ALJ erred in giving controlling
weight to the opinions of Plaintiff’s treating physician, Dr. Fabrey; and her treating
psychiatrist, Dr. Rahman.
In evaluating the opinion evidence the ALJ must consider the factors set forth in 20
C.F.R. § 404.1527(d)(2). These factors include: "(1) the length of the treatment relationship
10

and the frequency of the examination; (2) the nature and extent of the treatment relationship;
(3) the supportability of the opinion, with respect to relevant evidence such as medical signs
and laboratory findings; (4) the consistency of the opinion with the record as a whole; (5) the
specialization of the physician rendering the opinion; and (6) any other factor raised by the
applicant." Meece v. Barnhart, 192 Fed. Appx. 456, 461 (6th Cir.2006) (citing 20 C.F.R. §§
404.1527(d)(2)-(d)(6)).
It is well established that the "[t]he ALJ ‘must' give a treating source opinion controlling
weight if the treating source opinion is ‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques' and is ‘not inconsistent with the other substantial evidence
in [the] case record.' " Blakley v. Commissioner Of Social Sec., 581 F.3d 399, 406 (6th Cir.
2009) (quoting Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004). A finding by the
ALJ that a treating physician’s opinion is not consistent with the other substantial evidence
in the case record “means only that the opinion is not entitled to ‘controlling weight,’ not that
the opinion should be rejected.” Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4 (emphasis
added). “Treating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927.” Blakley, 581
F.3d at 408. These factors include the length, nature and extent of the treatment relationship
and the frequency of examination. 20 C.F.R. § 404.1527(d)(2)(i)(ii); 416.927(d)(2)(i)(ii);
Wilson, 378 F.3d at 544. In addition, the ALJ must consider the medical specialty of the
source, how well-supported by evidence the opinion is, how consistent the opinion is with the
record as a whole, and other factors which tend to support or contradict the opinion. 20
C.F.R. §§ 404.1527(d)(3)-(6), 416.927(d)(3)-(6); Wilson v. Commissioner, 378 F.3d 541, 544
(6th Cir. 2004).
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The ALJ must satisfy the clear procedural requirement of giving "good reasons" for
the weight accorded to a treating physician's opinion: "[A] decision denying benefits ‘must
contain specific reasons for the weight given to the treating source's medical opinion,
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.' Social Security Ruling 96-2p, 1996 WL 374188, at
*5 (1996)." Wilson, 378 F.3d at 544. The specific reasons requirement exists not only to
enable claimants to understand the disposition of their cases, but to ensure "that the ALJ
applies the treating physician rule and permit[] meaningful review of the ALJ's application of
the rule." Id. Only where a treating doctor's opinion "is so patently deficient that the
Commissioner could not possibly credit it" will the ALJ's failure to observe the requirements
for assessing weight to a treating physician not warrant a reversal. Id. at 547.
A.

Dr. Fabrey

With respect to Dr. Fabrey, the ALJ rejected his assessment, noting that it was
internally inconsistent (Dr. Fabrey had opined that Ms. Iames could sit for more than two
hours at a time, but also could sit for less than two hours total in an eight-hour workday.),
was “considerable over restrictive,” and was without any “substantive objective support.” (Tr.
47). The undersigned finds that the ALJ’s decision is substantially supported in this regard.
Notably, an ALJ may properly discount a treating physician’s disability assessment that is
internally inconsistent.

See Haynes v. Astrue, 11-185 (S.D. Ohio Jan. 20, 2012).

Furthermore, as noted above, it is well established that a treating source opinion is entitled
to controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques. . . .” Blakley v. Commissioner Of Social Sec., 581 F.3d 399, 406 (6th
12

Cir. 2009) (quoting Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004). Here, when
asked to identify clinical findings and objective signs to support his opinion, Dr. Fabrey
responded “none” (Tr. 544). In light of the foregoing, the undersigned finds that Plaintiff’s
assertions are not well-taken in this regard.
B.

Dr. Rahman

Plaintiff also asserts that the ALJ improperly evaluated the findings of Dr. Rahman,
Plaintiff’s treating psychologist. As detailed above, Dr. Rahman opined, among other things,
that Plaintiff was “unable to meet competitive standards” in completing a normal workday and
workweek without interruptions from psychologically based symptoms and had marked
limitations in maintaining concentration, persistence, or pace. (Tr. 538-43). However, the
ALJ rejected Dr. Rahman’s assessment because he had a limited treating history with
Plaintiff, having seen her on only two occasions; there were no supporting treating notes or
other evidence from Dr. Rahman; and his conclusions were inconsistent with the two
consultative psychological evaluations of record. (Tr. 48, citing Tr. 396-401, 437-43).
Plaintiff asserts that Dr. Rahman’s assessment was supported by the treatment notes
and objective findings2 of Dr. Fabrey and her mental health providers at Centerpoint Health
Center. These include clinical findings such as poor concentration, depressed and anxious
mood, insomnia, blunted effect, anger and helplessness. (Tr. 444,448, 457, 460-61, 506-

2

Objective medical evidence consists of medical signs and laboratory findings as defined
in 20 C.F.R. § 404.1528(b) and (c). See 20 C.F.R. § 404.1512(b)(1). “Signs” are defined as
“anatomical, physiological, or psychological abnormalities which can be observed, apart from
your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic
techniques. Psychiatric signs are medically demonstrable phenomena that indicate specific
psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory,
orientation, development, or perception. They must also be shown by observable facts that can
be medically described and evaluated.” 20 C.F.R. § 404.1528(b).

13

521, 527, 528-537). Thus, such objective evidence and treatment notes should have been
considered by the ALJ in his evaluation of Dr. Rahman’s assessment. There is no indication
that he did so.
Furthermore when mental illness is the basis of a disability claim, clinical and
laboratory data may consist of the diagnosis and observations of professionals trained in the
field of psychopathology. The report of a psychiatrist should not be rejected simply because
of the relative imprecision of the psychiatric methodology or the absence of substantial
documentation, unless there are other reasons to question the diagnostic techniques.
Blankenship v. Bowen, 874 F.2d 1116, 1121, (6th Cir.1989). In Blankenship, the Sixth Circuit
concluded that no cause existed to question the diagnosis of a psychiatrist made after only
one interview and where no psychological testing had been conducted and even though the
doctor noted the need for a more accurate history. Blankenship, 874 F.2d at 1121.
(Emphasis added). Thus, the fact that Dr. Rahman had seen Plaintiff on only two occasions,
standing alone, is not a proper basis to discredit his findings.
Accordingly, because this matter must be remanded as outlined above, the
undersigned finds that the ALJ’s evaluation of the opinion evidence relating to Plaintiff’s
mental impairments should also be revisited on remand so that the ALJ can properly evaluate
the medical evidence of record in accordance with agency regulations and controlling law.
4. ALJ’s consideration of Plaintiff’s Credibility
Plaintiff’s next assignment of error asserts that the ALJ improperly assessed Plaintiff’s
credibility. SSR 96-7p provides in part:
The reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a
conclusory statement that ‘the individual's allegations have been considered'
14

or that ‘the allegations are (or are not) credible.' It is also not enough for the
adjudicator simply to recite the factors that are described in the regulations for
evaluating symptoms. The determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and to
any subsequent reviewers the weight the adjudicator gave to the individual's
statements and the reasons for that weight.

SSR 96-7p.
The ALJ's credibility decision must also include consideration of the following factors:
1) the individual's daily activities; 2) the location, duration, frequency, and intensity of the
individual's pain or other symptoms; 3) factors that precipitate and aggravate the symptoms;
4) the type, dosage, effectiveness, and side effects of any medication the individual takes or
has taken to alleviate pain or other symptoms; 5) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms; 6) any measures
other than treatment the individual uses or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a
board); and 7) any other factors concerning the individual's functional limitations and
restrictions due to pain or other symptoms. See 20 C.F.R. §§ 404.1529(c) and 416.929(c);
SSR 96-7p.
Here, with respect to her mental impairments, the ALJ determined that her subjective
complaints of disability were not credible because such complaints were inconsistent with her
daily activities. Namely, despite Plaintiff’s complaints of disabling mental impairments, the
ALJ noted that Plaintiff prepares meals, transports her children places, helps with homework,
does laundry and cleaning. (Tr. 47). The ALJ further noted that she goes shopping, dances
in her home, and helps with charities. Id. However, in making this finding, the ALJ erred by

15

selectively relying on Plaintiff’s testimony regarding her daily activities. See Kelley v.
Callahan, 133 F.3d 583, 589 (8th Cir.1998) (“[A] person's ability to engage in personal
activities such as cooking, cleaning, and hobbies does not constitute substantial evidence
that he or she has the functional capacity to engage in substantial gainful activity.”) It is well
recognized that a claimant's ability to perform limited and sporadic tasks does not mean that
she is capable of full-time employment. See Carradine v. Barnhart, 360 F.3d 751, 755 (7th
Cir.2004); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001). The undersigned finds that
Plaintiff’s ability to engage in such daily activities does not establish ipso facto that she is
able to engage in gainful activity 40 hours per week.
Furthermore, because the ALJ failed to properly consider Plaintiff’s IBS related
symptoms and must reconsider the opinion evidence of record, it is also necessary for
Plaintiff’s credibility determination to be considered on remand. The impairments that the
ALJ found credible were included in her RFC determination, but the picture may change after
the medical evidence is reevaluated on remand, making it appropriate to keep this question
open also.

III. Conclusion and Recommendation
This matter should be remanded pursuant to Sentence Four of § 405(g) for further
proceedings consistent with this Report 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. Secretary of Health and Human Servs., 17 F.3d 171, 174 (6th
Cir. 1994) (citations omitted). In a sentence four remand, the Court makes a final judgment
16

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.
All essential factual issues have not been resolved in this matter, nor does the current record
adequately establish Plaintiff's entitlement to benefits as of her alleged onset date. Faucher,
17 F.3d at 176.
For the reasons explained herein, IT IS RECOMMENDED THAT: the decision of the
Commissioner to deny Plaintiff DIB benefits be REVERSED and this matter be REMANDED
under sentence four of 42 U.S.C. §405(g) consistent with this Report and Recommendation.
As no further matters remain pending for the Court’s review, this case be CLOSED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STACEY IAMES

Case No. 1:12-cv-829

Plaintiff,

Dlott, J.
Bowman, M.J.

vs.

CAROLYN W. COLVIN, acting
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).

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