King v. Commissioner of Social Security

Filing 9

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Carli King. IT IS RECOMMENDED THAT Defendant's decision be REVERSED as NOT supported by substantial evidence, and REMANDED for further development of the record under sentence four, with this case to be CLOSED. Objections to R&R due by 2/27/2018. Signed by Magistrate Judge Stephanie K. Bowman on 2/13/2018. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1:16-cv-1107

CARLI D. KING,

Barrett, J.

Plaintiff,

Bowman, M.J.
v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Carli King 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 argues that the ALJ erred both by improperly evaluating the
medical opinion evidence, and by finding her to be not fully credible. As explained
below, I conclude that the ALJ’s finding of non-disability should be REVERSED,
because the finding reflects legal error and is not supported by substantial evidence in
the record as a whole.
I. Summary of Administrative Record
On September 17, 2013, Plaintiff filed an application for Supplemental Security
Income (“SSI”), alleging disability beginning on January 31, 2010, based upon several
severe mental health impairments. 1

After her claim was denied initially and upon

reconsideration, Plaintiff requested an evidentiary hearing before an ALJ.

On

November 18, 2015, she appeared with counsel and gave testimony before ALJ Mark

1

A claimant cannot be awarded SSI benefits prior to the month of her application, but all evidence from
the alleged disability onset date was considered by the ALJ.

1

Hockensmith; a vocational expert also testified. (Tr. 36-70). On December 9, 2015, the
ALJ issued an adverse written decision, concluding that Plaintiff is not disabled. (Tr. 2029).
Plaintiff was 32 years old at the time of the ALJ’s decision, an age that is
considered to be a younger individual under social security regulations. She has a
limited ninth grade education.

She has four children, none of whom live with her,

apparently because of her mental impairments. She lives in a home with her sister, her
brother-in-law, and their three children. She has a limited work history, with no past
relevant work.
The ALJ determined that Plaintiff has severe impairments of bipolar disorder,
posttraumatic stress disorder (“PTSD”), and a panic disorder. (Tr. 22). In addition, the
ALJ noted non-severe impairments of chronic joint pain and gastro esophageal reflux
disease. (Tr. 22).

However, none of Plaintiff’s impairments, either alone or in

combination, meet or medically equal any Listing in 20 C.F.R. Part 404, Subpart P,
Appendix 1, such that Plaintiff would be entitled to a presumption of disability. (Tr. 23).
Instead, the ALJ found that Plaintiff retains the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels, subject to the following
non-exertional limitations relating to her mental impairments:
(1) work should consist of simple, routine tasks; (2) in a static work
environment with few changes in routine; (3) no fast paced work or strict
production quotas; (4) no contact with the public; (5) occasional contact
with coworkers and supervisors; and (6) no tandem or collaborative work.
(Tr. 24). Considering Plaintiff’s age, education, work experience and RFC, and based
on testimony from the vocational expert, the ALJ determined that Plaintiff could still
perform a significant number of jobs in the national economy, including the
representative jobs of laundry worker, inspector/Hand Packager, and Injection Molding
2

Machine Tender. (Tr. 28). Therefore, the ALJ determined that Plaintiff was not under a
disability. The Appeals Council denied further review, leaving the ALJ’s decision as the
final decision of the Commissioner.
In her appeal to this Court, Plaintiff primarily argues that the ALJ erred in
weighing the medical opinion evidence, and in improperly assessing her credibility.
Although I find no reversible error in the ALJ’s rejection of the opinions rendered by
Plaintiff’s treating physician or assessment of Plaintiff’s credibility, I nevertheless
recommend reversal based upon a separate legal error evident in the ALJ’s failure to
adequately discuss evidence of Plaintiff’s level of impairment in her more recent
records, and in the ALJ’s failure to discuss the consulting physicians’ lack of access to
those records.
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability.” 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
3

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 supplemental security income or 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 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 she is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits
must present sufficient evidence to show that, during the relevant time period, she
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suffered an impairment, or combination of impairments, expected to last at least twelve
months, that left him unable to perform any job. 42 U.S.C. § 423(d)(1)(A).
B.

Plaintiff’s Claims of Error

1. Evaluation of Plaintiff’s Credibility2
One of Plaintiff’s primary arguments is that the ALJ committed reversible error
when he determined that her testimony concerning the intensity, persistence, and
limiting effects of her mental and physical symptoms were “not entirely credible.” (Tr.
26). 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). Observing Plaintiff’s demeanor and
evaluating her testimony in this case, the ALJ specifically found it to be “not fully
consistent with the medical signs and laboratory findings and other information provided
by medical sources, including the longitudinal medical record, to a degree that supports
a finding of disability.” (Tr. 27).
As support for the adverse credibility finding, the ALJ referenced many findings
that undermined Plaintiff’s subjective complaints.

2

For example, Plaintiff testified to

Although presented as Plaintiff’s second claim of error, the undersigned addresses this claim first for the
convenience of the Court.

5

physical limitations that were not supported by the record, including a claim that she
could stand for only three hours, and can walk for not more than an hour. (Tr. 47). She
also testified to tingling in her hands and trouble grasping (Tr. 48), as well as pain in
every joint that would prevent her from working. (See Tr. 25). However, the ALJ found
no evidence to support “severe” physical impairments of any kind, and that Plaintiff
continued to possess the physical capacity to perform work at every exertional level.
Although Plaintiff does not appeal those findings in this Court, they are still relevant to
the overall assessment of credibility. (See also generally Tr. 414-420, physical
assessment by Phillip Swedberg, M.D.)
Just as he found Plaintiff’s testimony not to be credible concerning her physical
limitations, the ALJ found Plaintiff’s testimony concerning her mental limitations to be
not fully credible. The ALJ determined that although Plaintiff has sought psychiatric
treatment and been prescribed medications for her severe psychiatric disorders for a
number of years, that treatment has been effective in controlling her symptoms to a
non-disabling level except for periods when she has failed to comply with prescribed
treatment. (Tr. 26).
[S]he has had periods of noncompliance with both her medication and
treatment.
In August 2014 and September 2015, the claimant was hospitalized after
not taking her psychiatric medications, specifically Xanax…. She admitted
that she intentionally stopped taking the medications in June 2014 and
that in September 2015 she did not take them because she was
incarcerated. It is noted that the claimant has a history of felony
convictions including possession of cocaine, for which she is currently on
probation, and has had other legal problems regarding charges of theft
and forgery.
(Tr. 26). Plaintiff testified at the hearing that she stopped taking her medications based
upon a fear she would become addicted, especially to Xanax, (Tr. 57), but told Dr.
6

Rosenthal that she was unsure why she stopped taking her medications, suggesting it
could have been due to forgetfulness. (Tr. 375).
The lack of medical support for any of her alleged physical limitations, Plaintiff’s
noncompliance with treatment, her prior drug offenses, and history of theft and forgery
offenses were not the only factors impacting her credibility. The ALJ also pointed out
discrepancies in Plaintiff’s testimony concerning her very limited work history, and the
reasons that she does not work.
The claimant testified that she last worked at Kohl’s but was fired for
missing too much work and that she has issues with crying outbursts and
trouble dealing with people. However, she told consultative examiner,
James Rosenthal, Ph.D., in January 2014 that she stopped working
because “I just didn’t feel like I needed the money so I wouldn’t go in.”
…She did not recall ever being fired. She further stated that she usually
quits a job after a week because, ”I didn’t feel like I had to work. I didn’t
need the money. Sometimes I also was anxious at work and I didn’t want
to be around people.” She said she got along okay with bosses, “until
they would tell me what to do….”
(Id.)
Plaintiff argues in her reply memorandum that her failure to comply with
prescribed mental health treatment should not have been considered by the ALJ in
making an adverse credibility assessment, because the Sixth Circuit has recognized
that when it comes to mental health disorders, there are times when the “very failure to
seek treatment is simply another symptom of the disorder itself.” White v. Com’r of Soc.
Sec., 572 F.3d 272, 283-284 (6th Cir. 2009); see also Blankenship v. Bowen, 874 F.2d
1116, 1124 (6th Cir. 1989) (holding that a failure to seek medical care “should not be a
determinative factor in a credibility assessment,” and suggesting it is “questionable
practice to chastise one with a mental impairment for the exercise of poor judgment in
seeking rehabilitation.”)
If the credibility issue stood alone, the undersigned would find no reversible error,
7

in part because the ALJ did not rely solely on Plaintiff’s failure to comply with her
prescribed mental health treatment for the adverse credibility finding, but cited a number
of factors. Moreover, the Sixth Circuit has never wholly prohibited consideration of noncompliance with mental health treatment in a credibility assessment. Rather, the case
law supports a holistic review of the evidence. In White, for example, the Sixth Circuit
affirmed as “reasonable” the ALJ’s determination that the Plaintiff’s withdrawal from
mental health treatment for a six-month period supported a finding that her symptoms
were less severe during that period of time. Id., 572 F.3d at 283-284. In this case, the
ALJ’s credibility assessment is arguably supported by substantial evidence in the record
as a whole based upon the multiple factors cited and discussed. However, because the
credibility analysis may have been infected by the legal error committed by the ALJ in
evaluating the medical opinion evidence, and considering the extra caution that is
warranted under Sixth Circuit case law when drawing an adverse conclusion based
upon a failure to comply with mental health treatment, the undersigned recommends
that the ALJ reassess Plaintiff’s credibility on remand.
2. Evaluation of Medical Opinion Evidence
Plaintiff’s main assertion of error is that the ALJ improperly evaluated the medical
opinion evidence when he rejected the opinion of her treating psychiatrist, Dr. Baula,
that she would miss “about three” days per month of work based upon her impairments
or treatment. (Tr. 456). Dr. Baula had treated Plaintiff for about two years at the time of
her hearing. The opinions of a treating physician are to be given “controlling” weight if
they are well-supported and not inconsistent with other substantial evidence in the
record. However, the ALJ determined that Dr. Baula’s opinions were not entitled to
controlling weight, but only “some” weight, because they were not well-supported, and
8

were inconsistent with other substantial evidence of record. Of note, the ALJ actually
found Plaintiff to be more limited in two functional areas than did Dr. Baula.
On July 15, 2015, Dr. Baula completed a “Mental Impairment Questionnaire” in
which he identified Plaintiff’s diagnoses as PTSD, with a history of marijuana abuse,
headaches, and irritable bowel syndrome. (Tr. 454). Although the ALJ did not find any
severe physical impairments, it is worth pointing out that the ALJ found additional
mental impairments than noted by Dr. Baula, including severe bipolar disorder and a
panic disorder.
On the same questionnaire, Dr. Baula checked off boxes for a number of “signs
and symptoms” including the following: sleep disturbance, emotional lability, delusions
or hallucinations, panic attacks, feelings of guilt/worthlessness, suicidal ideation or
attempts, social withdrawal or isolation, invasive recollection of a traumatic experience,
persistent irrational fears, generalized persistent anxiety, and hostility and irritability.
(Id.). However, nothing on the “check box” list of symptoms or elsewhere on the form
describes the severity or frequency of Plaintiff’s symptoms, or the extent to which her
symptoms were managed with treatment to a non-disabling level. Instead, under a
query asking for clinical findings that demonstrate the severity of Plaintiff’s impairment,
Dr. Baula wrote only: “Very anxious around people, can have panic attacks.” (Tr. 455).
The form also includes a list of Plaintiff’s medications, and a notation that she has had a
“fair response” to treatment, indicating at least some level of effectiveness of treatment,
with a “fair” prognosis. (Id.) Dr. Baula states rather vaguely that “severe depression or
anxiety can worsen pain or other physical symptoms.” (Id.).
With respect to Plaintiff’s functional limitations, Dr. Baula first opined that Plaintiff
has no limitations at all in her activities of daily living. (Tr. 456). The ALJ rejected that
9

opinion (which undermines Plaintiff’s disability claim), and instead found “mild”
limitations in that area.

(Tr. 23).

Plaintiff reported doing her own housekeeping,

laundry, and cooking when her energy permits. She is able to go to stores or banks to
get money orders to pay her bills, and can drive when she needs to go somewhere.
(Id.) She has friends, handles her own personal care, uses Facebook, texts people on
her phone, and watches television daily. (Id.) However, the ALJ assessed mild
limitations based on the record as a whole, which included the opinions of consulting
psychologists and Plaintiff’s testimony that her friends shop for her because she does
not like having to deal with people. (Id.) Unsurprisingly, Plaintiff does not appeal the
ALJ’s determination that she has greater limitations in her activities of daily living than
assessed by her treating psychiatrist.
The ALJ also rejected Dr. Baula’s opinion that Plaintiff had only “slight” functional
limitations in concentration, persistence, or pace, (Tr. 456), finding (again, in Plaintiff’s
favor) that she has “moderate” limitations in that area. (Tr. 23-24). The finding of
“moderate” limitations, as opposed to the only “slight” limitations endorsed by Dr. Baula
in concentration, persistence, or pace, was supported by two state agency reviewing
consultants who opined that Plaintiff would have moderate limitations, (Tr. 26), and by
the report of examining consulting psychologist, Dr. Rosenthal, who opined that Plaintiff
“likely would display concentration deficits on complex or multi-step work assignments,”
but would be able to sustain concentration on simple or repetitive tasks. (Tr. 378; see
also Tr. 24, 26). The ALJ also referenced Plaintiff’s treatment records and her own
testimony that she is able to watch television and follow both written and verbal
instructions fairly well, while considering her testimony that she quickly lost interest in
past work and became easily irritated or anxious. Considering that the ALJ found more
10

significant limitations than endorsed by Dr. Baula in this functional area, Plaintiff also
asserts no error in the ALJ’s rejection of this aspect of Dr. Baula’s opinion.
Next, Dr. Baula opined that Plaintiff has experienced “marked” limitations in
“episodes of deterioration or decompensation.” (Tr. 456). After explaining that repeated
episodes of decompensation are defined under social security limitations as at least
three episodes within one year, each lasting at least two weeks in duration, the ALJ
found no evidence at all that Plaintiff has experienced any episodes of decompensation
of extended duration. (Tr. 23-24). Therefore, the ALJ rejected Dr. Baula’s opinion that
Plaintiff has such episodes. (Tr. 27). Plaintiff does not contest that finding.
The limited opinions rejected by the ALJ as to which Plaintiff does assert error
include Dr. Baula’s opinion that Plaintiff has “marked” difficulties in maintaining social
functioning, and that either her impairments or treatment would cause her to miss about
three days of work per month. (Tr. 456.)

Plaintiff specifically focuses on the opinion

concerning absenteeism, arguing that the rejection of that limitation by a treating
physician constitutes reversible error.
The ALJ explained his rejection of both the social limitation and absenteeism
opinions as follows:
[M]arked social limitations are not support[ed] in that the claimant’s record
indicates that she does tend to isolate herself but it does not support a
conclusion that she would not be able to perform a job with minimal
contact with other people. This is evident by the fact that she lives with
other people, has friends she communicates with, and presented as
cooperative at both the hearing and the consultative examination….
Additionally, part of Dr. Baula’s opinion is based on the claimant’s own
reports of pain from her physical impairments. Since this has already
been found to not cause more than minimal functional limitations, Dr.
Baula’s opinion that relied on such a conclusion finds a lack of support in
the record. Furthermore, Dr. Baula concluded that the claimant would
miss about three days a month due to her impairments. Again, such a
conclusion is not supported by the record and is therefore given little
weight.
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(Tr. 27).
Plaintiff argues that the ALJ committed reversible error by applying less
deference to Dr. Baula’s opinions on these issues than he did to the three non-treating
psychologists’ opinions. When an ALJ does not give controlling weight to a treating
physician's opinion, he must articulate the weight given to the opinion, and provide
“good reasons” for that decision. See Blakley v. Com'r of Social Security, 581 F.3d 399,
406 (6th Cir.2009) (additional citations omitted). In general, less weight is given to
examining consultants, with the least amount of weight to be given to the opinions of
non-examining consultants. See 20 C.F.R. § 416.927(c); Gayheart v. Com’r of Soc.
Sec., 710 F.3d 365, 377 (6th Cir. 2013) (holding that the rejection of a treating
physician’s opinion as inconsistent with the record must be based on something more
than only the opinions of nontreating doctors).

Here, it is evident from the ALJ’s

analysis that he did not reject the absenteeism and social impairment limitations based
solely on the opinions of non-treating experts, but on Dr. Baula’s own failure to fully
explain or provide support for his extreme limitations.
Before this Court, Plaintiff contends that “Dr. Baula identified several clinical
signs and symptoms” that support his opinions. However, Plaintiff does not specifically
identify which “signs and symptoms” that Dr. Baula allegedly relied upon, but instead
points only to pages 2-5 of her own Statement of Errors, wherein she generally
summarizes the record and highlights pages that she believes are the most favorable to
her claim.

See generally White v. Com’r, 572 F.3d at 284-285 (denying plaintiff’s

charge of “cherry picking” while noting that plaintiff also was “cherry picking” evidence,
and that the ALJ’s credibility determination, and finding that symptoms from plaintiff’s
bipolar illness were not disabling, were supported by substantial evidence and within the
12

“zone of choice” despite plaintiff’s reference to some “bad days”). In a related argument,
Plaintiff complains that the ALJ failed to consider that mental health symptoms “naturally
wax and wane” over time. (Doc. 8 at 4). She argues that her records do not document
“sustained, substantial improvement.”

(Id. at 5).

However, the ALJ did not find

sustained improvement so much as he simply concluded that Plaintiff’s symptoms
remained stable with treatment, and were never at a disabling level.
Despite the noted weaknesses of several of Plaintiff’s arguments, the
undersigned agrees with Plaintiff that the ALJ’s recitation to the record is, on the whole,
too insubstantial for this Court to uphold the decision.
On the one hand, the undersigned emphasizes that the ALJ’s rejection of Dr.
Baula’s opinions is substantially supported.

Plaintiff’s broad reference to her own

summary of the record (including her discredited testimony) is not sufficient to bolster
Dr. Baula’s unsupported opinion on absenteeism. 3 Again, in response to a query asking
him to provide support for his opinions by describing “the clinical findings including
results of mental status examinations which demonstrate the severity of your patient’s
mental impairment and symptoms,” Dr. Baula stated only that Plaintiff is “[v]ery anxious
around people” and “can have panic attacks.” (Tr. 455). That single statement does not
support any disabling level of impairment, much less the specific impairment of
excessive absenteeism. Nor is the undersigned convinced by Plaintiff’s argument that
the ALJ was required to point to evidence that was inconsistent with Dr. Baula’s opinion
on absenteeism, in the absence of any support for that opinion by Dr. Baula. The ALJ is

3

Some of the cited references appear to be irrelevant to Plaintiff’s mental impairments. For example,
Plaintiff cites to Tr. 422, which is an endoscopy record dated April 23, 2014. Other records reflect only
Plaintiff’s mental diagnoses, and in a few cases, suggest her symptoms “are known to respond to
treatment.” (Tr. 389, 391; see also Tr. 405, record dated 3/18/14, stating “Pt. is doing a little better”; Tr.
647, record dated 2/3/15, noting Plaintiff had resumed her medication and was “feeling better”).

13

not required to explain a nullity.

A treating physician’s opinions are entitled to

controlling weight only to the extent that those opinions are well-supported. Dr. Baula’s
opinions were not well supported, and the ALJ provided “good reasons” for finding those
opinions to be entitled to little weight.
Although Plaintiff focuses on Dr. Baula’s absenteeism opinion, the undersigned
also finds no specific error in the ALJ’s rejection of Dr. Baula’s opinion that Plaintiff had
“marked” functional limitations in her social interactions. Plaintiff testified that she visits
stores and banks, has friends who shop for her due to Plaintiff’s difficulty dealing with
strangers when shopping, uses Facebook, texts her friends throughout the day, and
calls family members every other day. (Tr. 23). This testimony, along with the lack of
support provided by Dr. Baula, arguably constitutes substantial evidence to support the
ALJ’s determination of only moderate social limitations.
On the other hand, the exceptionally brief discussion by the ALJ of Plaintiff’s
most severe symptoms, particularly as documented in her records during the time
period when she was treated by Dr. Baula, is sufficiently problematic that reversal is
required. While the ALJ was not required to discuss every record, his opinion should
have included some additional details to explain his broad conclusions that Plaintiff has
responded so well to treatment that her symptoms remained at a non-disabling level
through the date of the hearing. Instead, the ALJ referenced hundreds of pages of
treatment records in a cursory manner, in most instances without identifying any specific
pages that supported his conclusion that Plaintiff’s symptoms were stable and nondisabling, and/or that she recovered from significant exacerbations of her symptoms in
2014 and 2015. (See Tr. 26, referencing only generally Exhibits 5F, 12F-13F, 14F, 15F,
18F).
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The ALJ’s failure to adequately discuss the medical records that support the nondisability conclusion takes on greater significance when considering his reliance on
consulting psychologists, whose opinions all predate the referenced exacerbations of
Plaintiff’s symptoms. While the conclusion that Dr. Baula’s opinions were not well
supported and therefore not entitled to controlling weight generally means, by default,
that it was not error for the ALJ to rely on the consulting opinions, Plaintiff correctly
points out that those consultants did not review most of the material evidence, including
substantial treatment notes, Dr. Baula’s records and opinions, and psychiatric hospital
admission records.
In Blakley, 581 F.3d at 409, the Sixth Circuit explained that when an ALJ credits
the opinions of non-examining consultants who have failed to review a complete record
over the opinions of a treating physician, the ALJ must articulate his reasons for doing
so. The facts of Blakley required remand because the state non-examining sources did
not have the opportunity to review “much of the over 300 pages of medical
treatment…by Blakley’s treating sources,” and the ALJ failed to indicate that he had “at
least considered [that] fact before giving greater weight” to the consultants opinions. Id.
In this case, the ALJ similarly failed to offer any indication that he had considered the
timing of the consultants’ opinions. See also Gayheart, 710 F.3d at 379 (criticizing ALJ’s
failure to apply the same rigorous scrutiny to consulting opinions as ge did to treating
physician’s opinions).

Not only did the ALJ fail to acknowledge the fact that the

consulting physicians lacked access to what appear to have been the most significant
mental health treatment records, but the ALJ also failed to discuss those records in any
detail himself.

15

Dr. Rosenthal, the consulting psychologist, performed his clinical examination of
Plaintiff on January 9, 2014, nearly two years prior to the ALJ’s decision. The nonexamining consulting psychologists performed their records review in July 2014.
Plaintiff’s records reflect exacerbation of her symptoms after the consultants’ review, in
August 2014, again in June 2015 (a month prior to Dr. Baula’s opinions), and a third
time in September 2015. On each of those occasions, Plaintiff required Emergency
Room treatment and/or admission for severe psychiatric symptoms.

Even though

these brief hospitalizations did not constitute qualifying periods of decompensation for
purposes of listing level severity, the ALJ did not explain the basis for his conclusion
that these severe increases in symptoms, which occurred relatively frequently in 2014
and 2015, were not indicative of more disabling functional limitations during that period
of time. Instead, the ALJ only briefly referenced the exacerbations of symptoms in the
context of assessing Plaintiff’s credibility.
Because of the brevity of the ALJ’s analysis and apparent Blakley error, the
undersigned cannot conclude whether substantial evidence exists to support the ALJ’s
conclusion that Plaintiff’s symptoms were not disabling.

In August 2014, Plaintiff’s

Global Assessment of Functioning had deteriorated to “40,” suggesting a more disabling
level of symptoms, (Tr. 692), even though the same record indicates that a prior GAF
had been 55, reflecting more moderate symptoms. (Compare Tr. 692 with Tr. 390,
assessing GAF of 55 on January 13, 2014).

The ALJ did not cite to any specific

evidence to support his apparent conclusion that Plaintiff’s symptoms had been restored
to a non-disabling level after August 2014. The ALJ also did not discuss Plaintiff’s
report that she was unable to obtain her Xanax in September 2014 due to a lack of
insurance coverage. (Tr. 428).
16

In June 2015, Plaintiff was taken to the ER by her sister, and her GAF was
assessed at 37, again suggesting a disabling level of symptoms. Notably, upon her
discharge she was only “marginally improved,” with a “[g]uarded” prognosis, (Tr. 941).
Consistent with that low GAF score and prognosis, 4 Plaintiff returned to the hospital in
September 2015. (Tr. 1043). At that time, she reported that she had been without her
psychiatric medications for three days due to having been jailed for writing bad checks.
Last, the undersigned notes there are multiple references in the record to
possible marijuana, cocaine, and alcohol abuse. This issue may or may not be relevant
on remand in this case, as the ALJ’s opinion does not list drug or alcohol abuse as a
severe disorder at Step 2, and does not discuss the issue other than a brief reference in
the credibility determination. On remand, the ALJ may (but is not required to) explore
this issue further. To the extent that the issue may prove relevant, applicable regulations
require an initial determination of whether a claimant suffers from a disability that
includes drug or alcohol abuse, before proceeding, if necessary, to a separate and
distinct determination of whether the substance abuse is a “contributing factor to the
determination of a disability.” 20 C.F.R. § 416.935.
III. Conclusion and Recommendation
The Commissioner’s decision in this case requires reversal under Blakley v.
Commissioner of Social Security, and because the ALJ failed to adequately explain the
basis for his conclusion that Plaintiff’s symptoms remained at a non-disabling level
throughout the entire alleged disability period, as more specifically discussed above.

4

The undersigned recognizes that GAF scores have no “direct correlation to the severity requirements [of
the] mental disorders listings.” 65 Fed. Reg. 50745, 50764-65 (2000). Nevertheless, they can be
relevant in that they provide some indication of Plaintiff’s level of functioning on specific dates.

17

When substantial evidence supports a finding, a court will affirm even if
substantial evidence also exists to support a contrary finding. See Felisky v. Bowen, 35
F.3d at 1035. Here, however, while substantial evidence could be found to uphold the
specific rejection of Dr. Baula’s opinions and the adverse credibility finding, those issues
should be re-examined on remand because the ALJ’s overall analysis may have been
impacted by the identified reversible errors, and it is possible that substantial evidence
could be found to support contrary findings.
In Faucher v. Sec'y of Health and Human Servs., 17 F.3d 171, 176 (6th
Cir.1994), the Sixth Circuit explained that a trial court “can reverse the decision and
immediately award benefits only if all essential factual issues have been resolved and
the record adequately establishes a plaintiff's entitlement to benefits” (emphasis added).
In general, an award of benefits should be made only if proof of disability is strong and
opposing evidence is lacking, or where proof of disability is “overwhelming.” Id. The
Sixth Circuit reversed the immediate award of benefits made by the trial court
in Faucher because of “conflicting evidence in regard to the severity of plaintiff's
emotional impairments.” Id. For similar reasons, remand and not reversal for an outright
award of benefits is recommended in this case.
Accordingly, IT IS RECOMMENDED THAT Defendant’s decision be REVERSED
as NOT supported by substantial evidence, and REMANDED for further development of
the record under sentence four, with this case to be CLOSED.

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

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CARLI D. KING,

Case No. 1:17-cv-1107

Plaintiff,

Barrett, 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).

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