Meyer v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION that the defendants' 14 MOTION for voluntary Remand be Denied. The decision of the Commissioner be Reversed and Remanded pursuant to Sentence Four of 42:405(g) for an award of benefits consistent with this opinion. Objections to R&R due by 6/24/2016. Signed by Magistrate Judge Karen L. Litkovitz on 6/7/2016. (art)

UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AMY J. MEYER,
Plaintiff,

Case No. 1: l 5-cv-207
Barrett, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff Amy J. Meyer brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
for judicial review of the final decision of the Commissioner of Social Security (Commissioner)
denying plaintiffs application for disability insurance benefits (DIB) and granting her
application for supplemental security income (SSI) for the period beginning March l, 2012. This
matter is before the Court on plaintiffs Statement of Errors (Doc. 9), the Commissioner' s
response (Doc. 17), and plaintiffs reply (Doc. 19). This matter is also before the Court on the
Commissioner' s motion for voluntary remand (Doc. 14) and plaintiffs response in opposition
(Doc. 15).
I. Procedural Background of Administrative Proceedings

Plaintiff filed her applications for DIB and SSI in September 2011 , alleging disability
since June 15, 2006, due to depression and panic attacks. After initial administrative denials of
her claims, a hearing was held before administrative law judge (ALJ) Gregory G. Kenyon on
April 5, 2013. On July 11 , 2013, the ALJ issued a decision denying plaintiffs DIB application,
finding she was not under a disability at any time through December 31 , 2011, the date last

insured. The ALJ found plaintiff became disabled on March 1, 2012, for purposes of her SSI
application, but that she was not disabled at any time prior to that date.
Specifically, the ALJ determined that plaintiff met Listing 12.06 for anxiety-related
disorders as of March 1, 2012. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.06. The ALJ found
that the "Paragraph A" criteria of Listing 12.06 were satisfied as of March 1, 2012, because
plaintiff suffered from "recurrent severe panic attacks manifested by a sudden unpredictable
onset of intense apprehension, fear, tremor, [and] sense of impending doom occurring on the
average of at least once a week." (Tr. 70). During such panic attacks, plaintiff "experiences a
choking sensation and often vomits." (Id.). In addition, plaintiff has developed an apprehension
over taking pills and eating due to a fear of choking, with the attacks triggered by agoraphobic
anxiety and also occurring in private. (Id.). The ALJ found that the "Paragraph B" criteria were
satisfied because plaintiff experienced mild restriction in activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining concentration,
persistence or pace; and one to two episodes of decompensation, each of extended duration. (Id).
In support of his finding that plaintiff met Listing 12.06 as of March 1, 2012, but not before, the
ALJ determined that plaintiffs allegations regarding her symptoms and limitations were credible
for that period because there was "much more evidence from mental health treatment providers"
in the records beginning that date, including records of specialized treatment, and "assessments
from several mental health specialists who espouse[d] disabling restrictions" for plaintiff. (Tr.
71 , citing Tr. 434-52, 453-71 ).
Plaintiff appealed the ALJ's decision to deny benefits prior to March l , 2012 to the
Appeals Council. In connection with the appeal, plaintiff presented reports from her treating
psychologist and treating internist. Dr. John Scudder, Ed.D., reported that plaintiffs mental
2

health status and limitations on October 17, 2011 , the date of his first examination, were the
same as her condition in March 2012, when he completed a mental residual functional capacity
form and listings questionnaire. (Tr. 482-483). Dr. Scudder stated that in his view, plaintiffs
mental health condition "was already disabling when she first came to see [him] in October
2011." (Tr. 482). Dr. Joseph Hammad, M.D. , reported that plaintiffs anxiety disorder was
work prohibitive since at least her visit with him on September 13, 2011. (Tr. 484). Although
the Appeals Council accepted and considered this additional evidence, it nonetheless denied
plaintiffs request for review, making the decision of the ALJ the final administrative decision of
the Commissioner.

II. 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)(l)(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:
l) If the 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

3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix I 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 20 C.F.R. §§

404. l 520(a)(4)(i)-(v), 404. l 520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Id. ; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541 , 548
(6th Cir. 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).

III. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
I. The [plaintiff] met the insured status requirements of the Social Security Act
through December 31 , 2011.
2. The [plaintiff] has not engaged in substantial gainful activity since the alleged
onset date (20 CFR 404.1571 , et seq. , and 416.971 , et seq.).
3. Since the alleged onset date of disability, June 15, 2006, the [plaintiff] has had
the following severe impairments: Anxiety disorder, depression and a history of
alcohol abuse (20 CFR 404.1520(c) and 416.920(c)).
4. Prior to March 1, 2012, the date the [plaintiff] became disabled, the [plaintiff]
did not have an impairment or combination of impairments that meets or
4

medically equals the severity of 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 [ALJ] finds that prior to
March 1, 2012, the date the [plaintiff] became disabled, the [plaintiff] had the
residual functional capacity [("RFC")] to perform a full range of work at all
exertional levels but with the following nonexertional limitations: She could not
have climbed ladders, ropes or scaffolds. She could not have worked around
hazards, such as unprotected heights or dangerous machinery. She would have
been limited to performing unskilled, simple, repetitive tasks. She could have had
occasional contact with co-workers, supervisors, and the public. She could have
performed no rapid production pace work or jobs involving strict production
quotas. She would have been limited to performing jobs in a relatively static
work environment in which there is very little change in the work routine from
one day to the next.
6. Since June 15, 2006, the [plaintiff] has been unable to perform any past
relevant work (20 CFR 404.1565 and 416.965). 1
7. Prior to the established disability onset date, the [plaintiff] was an individual
closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
9. Prior to March 1, 2012, 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 [plaintiff] is "not disabled" whether or not
the [plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10. Prior to March 1, 2012, considering the [plaintiff] 's age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the [plaintiff] could have
performed (20 CFR 404. 1569, 404.1569a, 416.969, and 416.969a).2

1

Plaintiff's past relevant work was as a sales representative, which is a light exertion, skilled position. (Tr. 44).

2

The ALJ relied on the VE's testimony to find that prior to March I, 2012, plaintiff would be able to perform the
requirements of representative occupations such as folding machine operator ( 1,200 jobs locally, 60,000 jobs
nationally), routing clerk (2,000 jobs locally, 100,000 jobs nationally), and cleaner ( 1,500 jobs locally, I 00,000 jobs
nationally). (Tr. 45, 69-70).

5

11. Beginning on March 1, 2012, the severity of the [plaintiff] 's impairments has
met the criteria of section 12.06 of20 CFR Part 404, Subpart P, Appendix l (20
CFR 404.1520(d), 404.1525, 416.920(d) and 416.925).
12. The [plaintiff] was not disabled prior to March 1, 2012, (20 CFR 404. l 520(g)
and 4 l 6.920(g)) but became disabled on that date and has continued to be
disabled through the date of this decision (20 CFR 404. l 520(d) and 4 l 6.920(d)).
13. The [plaintiff] was not under a disability within the meaning of the Social
Security Act at any time through December 31, 2011, the date last insured (20
CFR 404.3 1S(a) and 404.320(b)).
(Tr. 61-72).

IV. Procedural History of District Court Proceedings
Plaintiff filed this appeal alleging two assignments of error: (1) the ALJ erred by failing to
properly weigh the opinions of her treating sources and by determining a disability onset date that
is not supported by substantial evidence; and (2) the Appeals Council abdicated its responsibility to
conduct a fair and complete review of the ALJ's decision. (Docs. 9, 17). Plaintiff requests that the
Court reverse and remand for an immediate award of benefits as of plaintiffs amended alleged
onset date of September 13, 2011. In the alternative, plaintiff requests a remand for the
consideration of new and material evidence under Sentence Six of 42 U.S.C. § 405(g) in the event
the Court finds that a reversal and remand for an immediate award of benefits under Sentence Four
of§ 405(g) is not warranted. (Doc. 9 at 17).
In response to the Statement of Errors, the Commissioner filed a motion for voluntary
remand of this matter on September 9, 2015. (Doc. 14). The Commissioner concedes that the
ALJ's decision finding that plaintiffs disability began on March 1, 2012, and awarding SSI as of
that date, is not supported by substantial evidence. The Commissioner moves the Court to remand
the case for a determination by the ALJ as to whether the evidence supports a disability onset date
6

of September 12, 2011. (Id.). Plaintiff filed a response opposing defendant' s motion. (Doc. 15).
Plaintiff contends that a remand for further consideration of the disability onset date is not
warranted because the proof of disability prior to the date her insured status lapsed is
overwhelming. Plaintiff seeks a reversal and remand for an immediate award of benefits based on
a disability onset date of September 13, 2011, the date she agreed with her primary care physician
to begin treatment with a mental health specialist. (Id. at 1, 5). In light of plaintiffs opposition to
the motion, and in the interest of judicial economy, the Court stayed its ruling on the
Commissioner's motion for voluntary remand and ordered the Commissioner to file a response on
the merits to plaintiff's statement of errors. (Doc. 16).
The Commissioner filed a response on March 1, 2016. (Doc. 18). The Commissioner
acknowledges that the Court stayed the motion for voluntary remand and " direct[ed] the
Commissioner to file a response brief on the merits of the ALJ' s decision. (Dkt. # 16)." (Id. at 1-2)
(emphasis added). However, instead of complying with the Court' s order to address the merits of
the ALJ ' s decision setting the onset date of disability as March 1, 2012, the Commissioner filed a
response asserting she does not agree that the response ordered by the Court is "appropriate here."

(Id. at 2). The Commissioner concedes that the ALJ 's decision is not supported by substantial
evidence and should be reversed. The Commissioner states that the only issue presented is whether
this case should be reversed and remanded for an award of benefits or reversed and remanded for
further administrative proceedings. The Commissioner contends that the latter course is
appropriate because although additional medical evidence plaintiff submitted to the Appeals
Council arguably provides proof of disability beginning sometime in 2011 , this evidence alone is
inadequate to firmly establish an earlier disability onset date. (Doc. 18). The Commissioner' s
response fails to address whether the record before the ALJ establishes a disability onset date of

7

September 13, 2011 , which is the essence of plaintiffs appeal to this Court.
In reply, plaintiff acknowledges that the only question remaining is whether this case should
be reversed and remanded for an award of benefits or reversed and remanded for further
administrative proceedings. (Doc. 19 at 3). Plaintiff alleges that evidence submitted to the Appeals
Council after the ALJ hearing establishes that she became disabled no later than September 13,
2011. (Doc. 19 at 5).

V. This matter should be reversed and remanded for an immediate award of benefits as of
September 13, 2011.
As indicated, the Commissioner concedes that the ALJ's decision setting the onset date of
disability as March 1, 2012, is not supported by substantial evidence. Therefore, the only issue in
this case is whether this matter should be reversed and remanded for an outright award of benefits
or for further administrative proceedings.
In a case where the final decision of the Commissioner is not supported by substantial
evidence, the Court has authority to affirm, modify or reverse the Commissioner' s decision " with
or without remanding the cause for rehearing. " 42 U.S.C. § 405(g); Melkonyan v. Sullivan , 501
U.S. 89, 100 (1991). Generally, benefits may be awarded immediately "only if all essential factual
issues have been resolved and the record adequately establishes a plaintiffs entitlement to
benefits." Faucher v. Sec. ofH.H.S. , 17 F.3d 171 , 176 (6th Cir. 1994); see also Abbott v. Sullivan,
905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec. ofH.H.S. , 820 F.2d 777, 782 (6th Cir. 1987). The
Court may award benefits where the proof of disability is strong and opposing evidence is lacking
in substance, so that remand would merely involve the presentation of cumulative evidence, or
where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky v. Bowen,
35F.3d 1027, 1041 (6thCir.1994).
While the parties agree that substantial evidence does not support the ALJ ' s finding that

8

plaintiff's disability had its onset on March I, 2012, they disagree on whether this matter should be
remanded for further administrative proceedings. Plaintiff requests a reversal and remand for an
immediate award of benefits, alleging that the evidence establishes a disability onset date of
September 13, 2011. 3 Plaintiff argues that the evidence supports a disability onset date that
coincides with that time frame. Plaintiff alleges that in finding that the disability onset date was
March I, 2012, the ALJ incorrectly weighed the medical opinion evidence and failed to properly
apply Social Security Ruling 83-20 (SSR 83-20), 1983 WL 31249 ( 1983), to infer the correct onset
date from the medical and other evidence that consistently describes the history and
symptomatology of her mental disease process. (Docs. 9, 15). The Commissioner contends that an
onset date cannot be determined based on the evidence before the Court.
Contrary to the Commissioner's position, proof of disability beginning September 13, 2011,
the onset date alleged by plaintiff, is overwhelming and the evidence to the contrary is lacking in
substance. The overwhelming weight of the medical evidence, plaintiff's work history, plaintiff's
consistent reports of her symptoms, and the third-party reports credited by the ALJ reasonably
permit only one conclusion: plaintiff's disability had its onset no later than September 13, 2011,
following plaintiff's traumatic and unsuccessful attempt to return to work.
The Court's analysis in determining whether the record adequately establishes plaintiff's
entitlement to benefits with an onset date of disability of September 13, 2011, Faucher, 17 F .3d at
176, is guided by SSR 83-20. SSR 83-20 sets forth the following analysis for cases of disability of
non-traumatic origin:
I. Applicant Allegations: The starting point in determining the date of onset of
disability is the individual's statement as to when disability began....
3

Plaintiff acknowledges that she initially alleged an onset date of June 15, 2006, the date she lost her job of 19 years,
when she submitted her applications for disability benefits. (Doc. 9 at 13 , n.2). Plaintiff notes, however, that she did
not seek treatment from a mental health provider until after she experienced a significant worsening of her symptoms in
September 20 I I, following her unsuccessful attempt to return to work. (Id.).

9

2. Work History: The day the impairment caused the individual to stop work is
frequently of great significance in selecting the proper onset date... .
3. Medical and Other Evidence: Medical reports containing descriptions of
examinations or treatment of the individual are basic to the determination of the
onset of disability. The medical evidence serves as the primary element in the onset
determination. Reports from all medical sources (e.g., physicians, hospitals, and
government agencies) which bear upon the onset date should be obtained to assist in
determining when the impairment(s) became disabling.
With slowly progressive impairments, it is sometimes impossible to obtain medical
evidence establishing the precise date an impairment became disabling.
Determining the proper onset date is particularly difficult, when, for example, the
alleged onset and the date last worked are far in the past and adequate medical
records are not available. In such cases, it will be necessary to infer the onset date
from the medical and other evidence that describe the history and symptomatology
of the disease process.
Particularly in the case of slowly progressive impairments, it is not necessary for an
impairment to have reached listing severity (i.e., be decided on medical grounds
alone) before onset can be established. In such cases, consideration of vocational
factors can contribute to the detennination of when the disability began.. . .
In determining the date of onset of disability, the date alleged by the individual
should be used if it is consistent with all the evidence available. When the medical
or work evidence is not consistent with the allegation, additional development may
be needed to reconcile the discrepancy. However, the established onset date must be
fixed based on the facts and can never be inconsistent with the medical evidence of
record.
SSR 83-20, 1983 WL 31249, at *2-3 (1983); see also Dennis v. Astrue, 655 F. Supp.2d 746, 752-53
(W.D. Ky. 2009).
SSR 83-20 directs that the starting point for ascertaining the onset date for a disability of
non-traumatic origin is the date alleged by the plaintiff. Here, plaintiff alleges that her disability
had its onset no later than September 13, 2011 , the date Dr. Hamad's notes reflect plaintiffs
unsuccessful work attempt due to panic attacks and anxiety. (Tr. 395). Plaintiff attempted to return
to work in September 2011 as a deli worker at a grocery store, but she was Jet go due to her panic
attacks. (Tr. 71 , citing Tr. 454- "Client attempted to return to work in 2011 , but her choking panic
10

attacks prevented her from performing job duties at Kroger."). One week after this visit, Dr.
Hamad, plaintiffs long-time treating internist who had been treating her for panic attacks and
anxiety, referred plaintiff to a mental health specialist. (Tr. 398). Plaintiff then began treating
with Dr. Scudder the following month. (Tr. 404-05). Plaintiffs consistent reports of debilitating
symptoms after this unsuccessful work attempt, as well as the medical and other evidence of
record, strongly support an onset date of disability of September 13, 2011.
The record shows that plaintiff consistently complained of panic attacks and anxiety
symptoms which had become debilitating by the time she unsuccessfully attempted to return to
work in September 2011 . In a function report she completed on October 26, 2011 , plaintiff
reported that her activities had changed because of "choking" episodes. (Tr. 254-61 ). Plaintiff
alleged that she primarily socialized over the phone and that she went to her father-in-law and
daughter's homes one to two weeks apart. (Tr. 258). Plaintiff reported that she did not like crowds
and that she chokes when she is out to dinner. (Tr. 259). When asked how well she handled stress,
plaintiff wrote "choke or puke." (Tr. 260).
Dr. Hamad 's records also reflect plaintiff's consistent reports of debilitating symptoms
supporting an earlier onset date of disability. Plaintiff had been followed by Dr. Hamad for several
years beginning in 2006 for her mental health symptoms, and Dr. Hamad had documented
plaintiff's symptoms and prescribed medication including SSRis (selective serotonin reuptake
inhibitors), Xanax, Citalopram, and Alprazolam to treat her anxiety and depression . (Tr. 344-400,
426-29, 472-79). The earliest treatment record from Dr. Hamad dates back to June 2006, when
plaintiff was seen for follow up of her depression. (Tr. 378). Dr. Hamad reported that plaintiff was
continuing to experience anxiety and was having vomiting spells. (Id.) . When Dr. Hamad saw
plaintiff in May 2011 for a yearly evaluation and follow-up of depression and anxiety, he noted she

11

had needed to increase her Xanax dose and reported that she appeared anxious and gaunt. (Tr.
387). On September 13, 2011, plaintiff told Dr. Hamad she had just lost her job because she had
panic attacks when she walked into her workplace and she was unable to perform her job duties due
to anxiety. (Tr. 34 7). Dr. Hamad prescribed medication as needed for globus (the sensation of
having a lump in the throat)4 and choking before trying to eat. (Tr. 349). His treatment notes show
that although plaintiff showed some improvement over the summer of201 l , her symptoms
precluded her from returning to work in September 20 I 1 and Dr. Hamad referred her for a mental
health evaluation at that time. (Tr. 398-400). The records do not show any improvement in
plaintiffs symptoms thereafter.
Consistent with Dr. Hamad 's reports, consultative examining psychologist Dr. Sexton
credited plaintiffs complaints in November 2011 that she was anxious and depressed and that she
suffered panic attacks of 20 to 30 minutes' duration occurring on a daily basis with symptoms of
sweating, a racing heart, shortness of breath, and frequent periods of tearfulness. (Tr. 409). 5
Plaintiff reported her height and weight as 5'8" and 98 pounds at that time, which appears to be
consistent with her complaints of difficulty with eating and vomiting spells. (Tr. 408). Dr. Sexton
opined that plaintiffs "complaint of depression and anxiety was consistent with her receiving
antidepressant and antianxiety medication," and her self-reported information "appeared to be

4

http://www.medicinenet.com/script/main/art.asp?articlekey=9022

5

While the ALJ discounted plaintiff's complaints to Dr. Sexton based in part on the high GAF score Dr. Sexton
assigned, the ALJ's reasoning in this regard was inconsistent. The ALJ implicitly credited the GAF score which Dr.
Sexton assigned the first and only time he saw plaintiff but gave " little weight" to the other GAF scores in the record on
grounds that apply equally to the score Dr. Sexton assigned: i.e., the scores varied widely and in several instances
"represent[ed] clinicians' initial impressions of the claimant's functioning." (Tr. 72).

12

reliable." (Tr. 411). 6
Finally, treating psychologist Dr. Scudder's Mental Status Questionnaire reflects plaintiffs
consistent reports of debilitating symptoms after her unsuccessful work attempt. On November 14,
2011, Dr. Scudder reported that plaintiff exhibited symptoms of anxiety and was unable to swallow
prescription medication because of a choking sensation. (Tr. 401 -03). Dr. Scudder also described
"roller coaster thinking," self-confinement, tearfulness, forgetfulness, and a lack of a sense of
purpose plaintiff felt since being dismissed from her job. (Tr. 401 ). On November 28, 20 11 , Dr.
Scudder completed a Daily Activities questionnaire indicating that plaintiff "dislikes crowds" and
is "somewhat agoraphobic"; that her high need for rest, poor attendance, and poor stress tolerance
may prevent work activities; and that she was fired from Kroger because of panic attacks. (Tr. 404405).
These treatment records demonstrate that plaintiff consistently complained of debilitating
panic attacks and anxiety symptoms beginning well before the ALJ's selected onset date of March
1, 2012. Indeed, contrary to the onset date he found, the ALI acknowledged that plaintiffs
symptoms were debilitating as early as September 2011. (Tr. 71 ). The ALJ "emphasize[d)" that
plaintiffs symptoms associated with what he described as her "increasing panic attacks that would
impede her ability to concentrate and persist on a task," such as "racing heart, shortness of breath
and high anxiety ... previously prohibited [plaintiff] from returning to work in 2011." (Tr. 71,
citing Tr. 454). Further, the records the ALJ cited in fact demonstrate that plaintiffs symptoms

6

Although the ALJ credited Dr. Sexton's assessment over the opinions of plaintiffs treating providers because the onetime examining psychologist " provided the most detailed examination records from the period before the claimant's
estab lished onset date" (Tr. 68), the ALJ failed to fulfill his obligation to consider the regulatory factors, including Dr.
Sexton's medical specialty, how well-supported by evidence the opinion was, how consistent the opinion was with the
record as a whole, and other factors which tended to support or contradict the opinion, in assessing the weight to give
Dr. Sexton's opinion. 20 C.F.R. §§ 404. I 527(c)(3)-(6), 4 I 6.927(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d
at 544.

13

were incapacitating prior March 1, 2012. 7 Plaintiffs consistent allegations, including those
credited by the ALJ, overwhelmingly suppo11 a disability onset date of September 13, 2011.
SSR 83-20 further indicates that medical evidence is of central importance to the disability
onset determination. Plaintiff alleges, and the Commissioner implicitly concedes, that the ALJ did
not properly weigh the medical opinion evidence in finding that plaintiffs disability did not have
its onset until approximately five months later on March 1, 2012. The records and reports from
plaintiffs treating psychologist strongly support a September 13, 2011 onset date of disability. On
March 12, 2012, Dr. Scudder completed a Medical Assessment of Ability to Do Work-Related
Activities (Mental). (Tr. 420-25). He opined that plaintiff has poor functional ability to follow
work rules, deal with the public, interact with supervisors, function independently, persist at a
work-like task, understand, remember and carry out detailed and complex job instructions, and
demonstrate reliability. Dr. Scudder found plaintiff has fair abilities to relate to co-workers, use
judgment, and understand, remember and carry out simple instructions. He opined that plaintiff has
no ability to deal with work stresses, behave in an emotionally stable manner, or relate predictably
in social situations. (Tr. 420-21 ). In support of his assessment, Dr. Scudder cited medical findings
of anxiety, depression, panic attacks, weight loss, disorientation, poor memory, and crying
continually. (Tr. 421 -22). Dr. Scudder further reported symptoms and findings associated with

7

In assessing plaintiffs complaints of debilitating symptoms prior to March 1, 2012, the ALJ acknowledged that
plaintiff had reported vomiting with panic attacks on a daily basis for approximately ten years, but he found the
incidents had "recently increased." (Tr. 70, citing Tr. 445, 453). The ALJ relied on two medical records dated June
and September 2012 which set forth the history of plaintiffs mental illness and the review of symptoms. Plaintiff
described panic attacks with racing heart, shortness of breath and high anxiety during a June 2012 psychological
evaluation. (Tr. 445). In a September 26, 2012 diagnostic assessment performed by the Health Resource Center of
Cincinnati, Inc., plaintiff reported symptoms of trouble swallowing food for over ten years, throwing up every day, and
experiencing panic attacks with shortness of breath, rapid breathing, and headaches. (Tr. 453). She indicated she
would like to return to the work place without having choking attacks "all the time." (Id.). Plaintiff was described as
" very thin for her height due to her prolonged issue with choking and throwing up during panic attacks." (Id.)
(emphasis added). The symptoms described by plaintiff in those records are the same as those reflected in the notes of
her primary care physician, Dr. Hamad, and her treating mental health specialist over the course of their treatment with
her. The records the ALJ cited do not demonstrate an increase in either the severity or frequency of plaintiffs panic
attacks following the expiration of plaintiffs insured status on December 31 , 2011.

14

plaintiffs anxiety disorder that are of listing level severity. (Tr. 424-25). The symptoms and
findings in those two reports are consistent with Dr. Scudder's November 2011 report and support
an earlier onset date of disability. 8 Notably, the Commissioner has not presented any argument or
cited any evidence showing that the ALJ properly weighed the opinions of plaintiffs treating
sources and properly credited the opinions of the one-time and non-examining psychologists over
those of plaintiffs treating sources in declining to find an onset date of disability prior to March
2012.
Finally, the detailed picture of the nature and course of plaintiffs psychological symptoms
provided by her father-in-law, Eugene Meyer, and her daughter, Kristy Meyer, is consistent with
plaintiffs report of symptoms and her assertion of an onset date of disability that coincides with her
failed work attempt. (Tr. 305-10, 330). The ALJ stated that he was giving these reports of
plaintiffs functioning "some weight"; however, he did not find the reports to be inconsistent to any
extent with plaintiffs claims or with any other evidence in the record. (Tr. 69). Rather, the ALJ
found the reports were credible, stating:
Because their descriptions of the claimant's impairments and limitations largely
comports (sic) with the claimant's own limitations, the undersigned has found
them credible (see Hearing Testimony). Additionally, as the only people that the
claimant sees on a regular basis, their observations can provide a unique insight
into the claimant's impairments and limitations.

(Id.).
The third-party reports describe plaintiffs symptoms as growing increasingly severe

8

Although plaintiff submitted additional reports to the Appeals Council from Drs. Scudder and Hammad which further
support a finding of an onset of disability in September 2011 , the Court does not consider such reports in determining
the remedy in this case. Where the Appeals Council denies review, as in this case, it is the ALJ ' s decision that is
considered the final decision of the Commissioner. Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993). See also Smith
v. Comm 'rofSoc. Sec., No. 2:12-cv-12160, 2013 WL 5243448, at *4 (E.D. Mich. Sept. 18, 2013). In conducting its
review of the Commissioner' s decision, the district court cannot consider evidence that was not presented to the ALJ .
Elliott v. Apfel, 28 F. App'x 420, 423 (6th Cir. 2002) (citing Cline v. Comm 'r ofSoc. Sec., 96 F.3d 146, 148 (6th Cir.
1996); Cotton, 2 F.3d at 696). This is so even if the Appeals Council considered newly presented evidence in deciding
to deny review. Id. at 424.

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and as having become debilitating by the time she lost her short-lived job with Kroger in September
2011. (Tr. 305-10, 330). Plaintiff's father-in-law wrote that he believed plaintiff began
experiencing anxiety attacks after she was terminated from her job with Brown Campbell. 9 (Tr.
305). He wrote that a change was apparent in plaintiff in that she could barely make it through a
meal when they went out to eat or when she came to his house to eat. (Tr. 306). He explained that
plaintiff would get "choked up and sick to her stomach." (Id.). He explained that her symptoms of
gasping for air and upset stomach did not improve even though she saw her doctor and tried to get
help from a mental health provider, which she had difficulty finding due to a lack of funds. (Id.).
Mr. Meyer described plaintiff's unsuccessful attempt to return to work at Kroger in the deli
department: "On the first day on the job as the pressure of waiting on people became to (sic) much
for her she choked up [,] became sick to her stomach [,] gasped for air and spent time in the
restroom before she could face anybody." (Tr. 307). The manager told her she was not needed that
same day, and her request for any type or work or a position at another store was denied. (Id.). Mr.
Meyer observed plaintiff become very depressed. (Tr. 308). He explained that if she was in a
"pressure situation that bothered her" she suffered breathing problems and an upset stomach. (Id.).
Mr. Meyer stated that plaintiff might " get choked up and upset" when she visited him. (Tr. 309).
Mr. Meyer stated when plaintiff's Kroger job fell through, "she was worse off than before." (Tr.
310). Plaintiff's daughter, Kristy Hunter, wrote in an email dated March 19, 2013, that plaintiff
"chokes every time she eats" at home, in restaurants, or on a snack while out in public. (Tr. 330).
Ms. Hunter wrote that plaintiff had long suffered from depression and that her main issues were
anxiety and panic attacks. She explained that plaintiff gets very anxious when she is out in public
in any kind of setting and that plaintiff will inevitably suffer a panic attack if she is "put on the

9

Plaintiff held the j ob for 19 years before being terminated in June 2006. (Tr. 247).

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spot." Ms. Hunter explained that when plaintiff experiences a panic attack, she "turns red and very
uncomfortable [which] causes her throat to swell even when not eating and she will vomit or dry
heave if she has nothing in her stomach." Ms. Hunter indicated that plaintiffs condition had been
worsening and that she was "at rock bottom." Ms. Hunter wrote that plaintiffs anxiety kept her
from interacting with other customers at the Kroger job in 2011 because she got very nervous or
overwhelmed and could not perform her tasks. Ms. Hunter recalled that plaintiff had told her she
had to excuse herself at the job to go into the bathroom because her throat had closed up. The thirdparty reports, which the ALJ fully credited, therefore substantiate plaintiffs claim that she suffered
debilitating panic attacks and anxiety symptoms as early as September 13, 2011.
When, as here, impairn1ents are progressive in nature, the Commissioner must "infer the
onset date from the medical and other evidence that describes the history and symptomology of the
disease process." Blankenship v. Bowen, 874 F.2d 1116, 1122 (6th Cir. 1989) (quoting SSR 8320). In Blankenship, the Sixth Circuit recognized that "there is the common sense notion that
appellant did not suddenly find himself, five months after the expiration of his coverage,
completely incapacitated by his [mental] disorder." 874 F.2d at 1122. Similarly, common sense
dictates that plaintiffs mental impairments did not suddenly become completely disabling just two
months after her insured status expired. Plaintiffs complaints of panic attacks and anxiety
symptoms are well-documented in the record and are corroborated by the medical treatment
records. The records show that plaintiff suffered debilitating panic attacks as early as September
13, 2011 , the date she made a return visit to her primary care physician, Dr. Hamad, following the
deterioration in her condition triggered by a failed attempt to return to work. Notably, "the day the
impairment caused the individual to stop work is frequently of great significance" in determining
the date of onset. SSR 83-20, 1983 WL 31249, at *2. Plaintiffs consistent allegations, including

17

those credited by the ALJ, overwhelmingly support a disability onset date of September 13, 2011.
The overwhelming weight of the medical evidence, plaintiff's subjective complaints as credited by
the ALJ, her work history, and the third-party reports are consistent with plaintiffs allegation that
her mental disability had its onset in September 2011. The ALJ found that plaintiff met the criteria
of Listing 12.06 as of March 1, 20 I 2. The evidence on which the ALJ relied is fully consistent
with evidence dating back to September 201 I, at which time plaintiff was unable to return to work
due to debilitating panic attacks and anxiety symptoms and supports a remand of this matter for an
immediate award of benefits.
Moreover, remand for further administrative proceedings would serve no purpose other than
additional delay in a case that has been pending for more than 5 I /2 years. Plaintiff first filed her
applications for disability benefits in September 20 I I. (Tr. 204-17). She was afforded an ALJ
hearing I 8 months later in April 2013. (Tr. 12-54). The ALJ subsequently issued a hearing
decision three months later in July 2013. (Tr. 55). Plaintiff requested review of the ALJ 's hearing
decision in September 20 I 3. (Tr. 7-11 ). It was not until March 20 I 5, which was 18 months after
plaintiff had requested review, that the Appeals Council issued its decision denying plaintiff's
request for review. (Tr. 1-6). Plaintiff filed her appeal of the Commissioner' s decision in this
Court that same month. (Doc. 3). The Commissioner sought two extensions of time to respond to
the Statement of Errors. (Docs. 10, 12). Only after seeking and obtaining two extensions of time
did the Commissioner file her motion to remand this matter on September 23, 2015. (Doc. 14). By
the time the Commissioner filed her "response" to the Statement of Errors on March 1, 2016 (Doc.
18), nearly 5 112 years had elapsed from the date plaintiff first filed her applications for disability
benefits. Further delay in the resolution of plaintiffs claim for benefits would be unjust.
Therefore, this matter should be reversed and remanded for an award of benefits beginning

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September 13 , 2011 .
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant' s motion for a voluntary remand (Doc. 14) be DENIED.

2. The decision of the Commissioner be REVERSED and REMANDED pursuant to
Sentence Four of 42 U.S.C. § 405(g) for an award of benefits consistent with this opinion.

~L~

Karen L. Litkovitz ..
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AMY J. MEYER,
Plaintiff,

Case No. 1: 15-cv-207
Barrett, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
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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