Peters v. Commissioner of Social Security

Filing 21

MEMORANDUM OF OPINION AND DECISION - IT IS ORDERED THAT the decision of the Commissioner to deny Plaintiff DIB benefits be REVERSED and this matter is REMANDED under sentence four of 42 U.S.C. § 405(g) consistent with this Memorandum of Opinion and Decision. As no further matters remain pending for the Courts review, this case is CLOSED. Signed by Magistrate Judge Stephanie K. Bowman on 2/17/2021. (km)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MELISSA PETERS,

Case No. 1:19-cv-827

Plaintiff,
Bowman, M.J.
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OF OPINION
AND DECISION
Plaintiff Melissa Peters filed a Social Security appeal in order to challenge the
Defendant’s findings 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. The parties have consented to disposition by the Magistrate Judge. (Doc. 9).
For the reasons explained below, ALJ’s finding of non-disability is REVERSED and
REMANDED because it is not supported by substantial evidence in the administrative
record.
I.

Summary of Administrative Record

In December 2015, Plaintiff filed applications for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) alleging a disability onset date of October 24,
2013, due to mental and physical impairments. (Tr. 245-247). After Plaintiff’s claims were
denied initially and upon reconsideration, she requested a hearing de novo before an
Administrative Law Judge. (“ALJ”). On April 19, 2018, ALJ Gregory Kenyon held an
evidentiary hearing at which Plaintiff appeared with counsel. The ALJ heard testimony
from Plaintiff and an impartial vocational expert. (Tr. 39-73). On September 17, 2018, the

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ALJ issued a decision denying Plaintiff’s application for benefits. (Tr. 10-31). Plaintiff
now seeks judicial review of the denial of her application.
Plaintiff was 31 years old on her alleged onset date. (Tr. 24). She completed two
years of college in 2009 and Bartending School on an unknown date. (Tr. 303). She has
past relevant work as a server/bartender and administrative clerk. She reported that she
was sexually assaulted in college and later lost a child, causing, inter alia, flashbacks and
nightmares through the date of the hearing. (Tr. 51-52). She alleges disability based
primarily on mental impairments.
Based upon the record and testimony presented at the hearing, the ALJ found that
Plaintiff had the following severe impairments: lumbosacral degenerative disc disease, a
bipolar disorder, an anxiety disorder, and a personality disorder. (Tr. 16). The ALJ
concluded that none of Plaintiff’s impairments alone or in combination met or medically
equaled a listed impairment in 20 C.F.R. Part 404, Subp. P, Appendix 1. The ALJ
determined that Plaintiff retains the following residual functional capacity (“RFC”) to light
work with the following limitations:
She can do no more than occasional crouching, crawling, kneeling,
stopping, balancing, or climbing of ramps and stairs. No climbing of ladders,
ropes, or scaffolds. No work around hazards such as unprotected heights
or dangerous machinery. She is limited to performing unskilled, simple,
repetitive tasks, without fast-paced production work or in jobs involving strict
production quotas. She is limited to jobs that have few, if any, changes in
job duties or work routine from one day to the next. She can have no more
than occasional contact with supervisors and co-workers, and no contact
with the general public. She can have no occupational exposure to drugs or
alcohol.
(Tr. 18). 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 was unable to perform her past relevant work, Plaintiff could

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perform other work in the national economy including such jobs as routing clerk, inspector
and mail clerk. (Tr. 25). Accordingly, the ALJ determined that Plaintiff is not under
disability as defined in the Social Security Regulations, and is not entitled to DIB 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 give controlling weight to the opinion of Plaintiff’s
treating psychiatrist, and 2) relying on the findings of Dr. Edwards, a non-examining state
agency physician. Upon close analysis, I conclude that the ALJ’s evaluation of the opinion
evidence is not supported by substantial evidence. As such, remand is warranted for
further fact-finding.
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” 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).

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Substantial evidence is “such relevant

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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
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.

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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 supported by Substantial Evidence
Plaintiff’s assignments of errors challenge the ALJ’s evaluation of the opinion
evidence. In this regard, Plaintiff contends that the ALJ erred in failing to give controlling
weight to the opinion of Dr. Barton, Plaintiff’s treating psychiatrist, and instead gave
deference to the findings of Dr. Edwards. Plaintiff’s contentions are well-taken.
Notably, in August 2016, Joseph Edwards, Ph.D. reviewed Plaintiff’s records for
the state agency and found that she had mild restrictions in activities of daily living;
moderate limitations maintaining social functioning; moderate restrictions in maintaining
concentration, persistence, or pace; and no episodes of decompensation. (Tr. 112). Dr.
Edwards did not adopt the prior RFC in the 2013 ALJ’s decision because of a new and
material change in Plaintiff’s health, including an additional diagnosis of a personality
disorder. (Tr. 140). Dr. Edwards opined that Plaintiff could “carry out 1-3 step routine tasks
in settings with regular breaks and without strict time or production quotas.” (Tr. 143). She
could also “maintain brief conventional relations with others,” and that “major changes
should be explained in advance and implemented gradually. (Tr. 143-144)
On May 3, 2017, Lucas Barton, M.D completed an opinion form stating that he had
seen Plaintiff at eight appointments, over the course of an 18-month period from

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November 2015 through May 2017. (Tr. 650). His diagnoses were post-traumatic stress
disorder (PTSD), panic disorder, and an unspecified bipolar disorder, that he stated
Plaintiff had a poor prognosis. (Tr. 650). He stated that she had persistent and severe
anxiety associated with panic attacks, impairment concentration, irritability, insomnia, and
periodic episodes of depression/mania. (Tr. 650). Dr. Barton checked boxes indicating a
range of responses, from being not limited in understanding and carrying out short and
simple instructions, to having no useful ability to function in areas like accepting
instructions from supervisors. (Tr. 651-652). Dr. Barton indicated that Plaintiff had
moderate restrictions in activities of daily living; marked difficulties maintaining social
functioning; marked deficiencies of concentration, persistence, or pace; and four or more
episodes of decompensation within 12-months, each of which lasted at least 2 weeks.
(Tr. 653). He opined that these limitations existed at least one year prior and “likely
longer.” (Tr. 654).
In formulating Plaintiff’s mental RFC, the ALJ gave difference to the assessment
of Joseph Edwards, Ph.D., given on behalf of the Division of Disability Determination
(DDD) at the reconsideration level. Dr. Edwards opined that claimant’s mental healthrelated limitations require her to be limited to performing routine 1-3 step tasks without
strict time or production quotas, allow her to maintain only brief conversational
interactions with others, work in a relatively static environment with few changes made
gradually and with advance notice. (Tr. 22).
With respect to Dr. Barton, plaintiff’s treating psychiatrist, the ALJ assigned little
weight to his mental health assessments. In this regard, the ALJ noted that Dr. Barton’s
treatment notes “imply a significantly less impaired individual than these questionnaires

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indicate. The ALJ further noted that it appears that Dr. Barton based these answers on
“the uncritical acceptance of claimant’s subjective complaints, especially relating to her
agoraphobia, rather than the critical analysis of what claimant is actually capable of.” (Tr.
23). Namely, the ALJ noted Dr. Barton’s apparent unquestioning acceptance of Plaintiff’s
statement of agoraphobia, yet he also noted that Plaintiff reported buying benzodiazepine
“on the street.” (Tr. 23).
Upon careful review, the undersigned findings that the ALJ’s findings, at least in
part, failed to comport with Agency regulations and controlling law.
When considering the various medical opinions submitted in a disability claim, an
ALJ is subject to certain procedural requirements. An ALJ must “determine and articulate
on the record the amount of weight given to the opinion.” Lantz v. Astrue, 2010 U.S. Dist.
LEXIS 13237 (S.D. Ohio 2010) (citing 20 C.F.R. § 404.1527(d); Wilson v. Commissioner,
378 F.3d 541 (6th Cir. 2004)). Generally, treating physicians’ opinions are “accorded
substantial deference, and if uncontradicted, complete deference.” Kidd v. Comm'r of
Soc. Sec., 283 Fed Appx. 336, 340 (6th Cir. 2008) (citing Shelman v. Heckler, 821 F.2d
316, 320 (6th Cir. 1987)). A treating specialist’s opinion is considered with even higher
regard. Where a treating physician's medical opinion is found not to be sufficiently
supported by the record, it means “only that the opinion is not entitled to
‘controlling weight,’ not that the opinion should be rejected.” SSR 96-2p, 1996 SSR LEXIS
9.
To determine what weight a treating physician's opinion is given, an ALJ must
apply certain factors set forth in 20 C.F.R. § 404.1527(d)(2). These factors include: “(1)
the length of the treatment relationship and the frequency of the examination; (2) the

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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)).
When stating what weight is afforded to a physician's opinion, the ALJ must “give
good reasons”: “A Social Security ruling explains that, pursuant to this provision, 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.’” Wilson v. Commissioner, 378 F3d 541, 545 (6th Cir. 2004) (citing SSR 962p, 1996 WL 374188 at *5 (1996)). In Wilson, an ALJ's explanation for not giving
controlling weight was found procedurally insufficient because of failure to do three things:
1) to clarify whether the opinion was not well-supported by medically acceptable clinical
and laboratory diagnostic techniques, or was inconsistent with the other substantial
evidence in the case record; 2) to identify the evidence that led the ALJ to his decision;
and 3) to explain the application of the factors listed in 20 C.F.R. § 404.1527(d)(2). Wilson,
378 F3d at 546.
As a rule, the ALJ must build an accurate and logical bridge between the evidence
and her conclusion. Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011); see
also Wilson v. Comm. of Soc. Sec., 378 F.3d 541, 544–546 (6th Cir. 2004) (finding it was

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not harmless error for the ALJ to fail to make sufficiently clear why he rejected the treating
physician's opinion, even if substantial evidence not mentioned by the ALJ may have
existed to support the ultimate decision to reject the treating physician's opinion). Thus,
“an ALJ's decision must articulate with specificity reasons for the findings and conclusions
that he or she makes.” Bailey v. Commissioner of Social Security, 173 F.3d 428, 1999
WL 96920 at *4 (6th Cir. Feb, 2, 1999). See also Hurst v. Secretary of Health and Human
Services, 753 F.2d 517 (6th Cir. 1985) (articulation of reasons for disability decision
essential to meaningful appellate review); Social Security Ruling (SSR) 82–62 at *4 (the
“rationale for a disability decision must be written so that a clear picture of the case can
be obtained”).
As noted above, the ALJ rejected the findings of Dr. Barton, in part, because his
opinions were based upon Plaintiff's self-reports of her symptoms. However, contrary to
the findings of the ALJ, the fact that those opinions were based on Plaintiff's self-reports
does not provide an adequate basis to reject such findings. Notably, the Sixth Circuit
Court of Appeals, citing Poulin v. Bowen, 817 F.2d 865 (D.C. Cir. 1987), stated that:
A psychiatric impairment is not as readily amenable to substantiation by
objective laboratory testing as a medical impairment ... consequently; the
diagnostic techniques employed in the field of psychiatry may be somewhat
less tangible than those in the field of medicine.... In general, mental
disorders cannot be ascertained and verified as are most physical illnesses,
for the mind cannot be probed by mechanical devices [sic] in order to obtain
objective clinical manifestations of medical illness.... 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).

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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. Thus, interviews are clearly an
acceptable diagnostic technique in the area of mental impairments and Dr. Barton could
rely upon Plaintiff's subjective complaints elicited during her treatment sessions in
formulating Plaintiff's functional restrictions. See Warford v. Astrue, No. 09–52, WL
3190756, at *6 (E.D. Ky. Aug. 11, 2010) (finding interviews are an acceptable diagnostic
technique in the area of mental impairments).
As noted above, the Commissioner is required to provide “good reasons” for
discounting the weight given to a treating-source opinion. Id. § 404.1527(c)(2). These
reasons must be “supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the
treating source's medical opinion and the reasons for that weight.” Soc. Sec. Rul. No. 96–
2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996). This procedural requirement
“ensures that the ALJ applies the treating physician rule and permits meaningful review
of the ALJ's application of the rule.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004).
Furthermore, the ALJ also noted that although Dr. Barton cited Plaintiff’s
complaints of agoraphobia, he also noted that she was buying benzodiazine “on the
street.” (Tr. 23, citing Tr. 979). While this may be correct, the records contain objective
evidence and clinical findings relating to Plaintiff’s mental impairments from Dr. Barton.
As noted by Plaintiff, these include clinical findings such as anxiety, irritability, rapid

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speech, emotional instability, dysphoria, depression, thoughts of self-harm, isolation, and
insomnia. (Tr.496-589, 629-649, 650-654, 939-1054).
Moreover, the ALJ’s sparse analysis related to the weight assigned to the state
agency psychologist prevents the Court from engaging in meaningful review of his
findings. As detailed above, the ALJ assigned great weight to the opinion of the state
agency psychologist Dr. Edwards. (Tr. 22). In so concluding, the ALJ’s decision states, in
toto:
Significant weight is given to the assessment of Joseph Edwards, Ph.D.,
given on behalf of the Division of Disability Determination (DDD) at the
reconsideration level. Dr. Edwards opined that claimant’s mental healthrelated limitations require her to be limited to performing routine 1-3 step
tasks without strict time or production quotas, allow her to maintain only
brief conversational interactions with others, work in a relatively static
environment with few changes made gradually and with advance notice.
While these recommendations do not use vocationally defined terms, they
are effectively incorporated into the social and task limitations noted above.
(Tr. 22). Notably, the ALJ fails to explain why he assigned great weight to Dr. Edwards’
findings.
As a rule, the ALJ must build an accurate and logical bridge between the evidence
and his conclusion. Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011); see
also Wilson v. Comm. of Soc. Sec., 378 F.3d 541, 544–546 (6th Cir. 2004) (finding it was
not harmless error for the ALJ to fail to make sufficiently clear why he rejected the treating
physician's opinion, even if substantial evidence not mentioned by the ALJ may have
existed to support the ultimate decision to reject the treating physician's opinion). Thus,
“an ALJ's decision must articulate with specificity reasons for the findings and conclusions
that he or she makes.” Bailey v. Commissioner of Social Security, 173 F.3d 428, 1999
WL 96920 at *4 (6th Cir. Feb, 2, 1999). See also Hurst v. Secretary of Health and Human

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Services, 753 F.2d 517 (6th Cir. 1985) (articulation of reasons for disability decision
essential to meaningful appellate review); Social Security Ruling (SSR) 82–62 at *4 (the
“rationale for a disability decision must be written so that a clear picture of the case can
be obtained”). Here, the ALJ's evaluation of the opinion evidence does not build an
accurate and logical bridge between the evidence and his conclusion.
Furthermore, it is clearly established law that the opinion of a non-treating “oneshot” consultative physician or medical advisor cannot constitute substantial evidence to
overcome the properly supported opinion of a physician who has treated a claimant over
a period of years. See Lashley v. Secretary of Health and Human Services, 708 F.2d
1048, 1054 (6th Cir. 1983). As detailed above, Dr. Barton treated Plaintiff for at least 18
months.
It appears that the ALJ applied a more rigorous scrutiny to Dr. Barton’s opinions
than to those of the non-treating and non-examining opinions of Dr. Edwards. The Sixth
Circuit has found that this is precisely the inverse of the analysis that the regulation
requires. Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 379 (6th Cir. 2013), reh'g
denied (May 2, 2013). See also 20 C.F.R. § 404.1527(c); Soc. Sec. Rul. No. 96–6p, 1996
WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996). As such, the ALJ's decision indicates
that his assessment of the psychological opinion evidence failed to abide by the
Commissioner's regulations and therefore calls into question the ALJ's analysis. See Cole
v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (“An ALJ's failure to follow agency rules and
regulations denotes a lack of substantial evidence.” (internal quotation marks omitted) ).
Accordingly, remanded is warranted in this case because there is insufficient evidence in
the record to support the Commissioner's conclusions. On remand, the ALJ should be

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instructed to properly evaluate and weigh the opinion evidence in accordance with
Agency regulations and controlling law.
II.

Conclusion

This matter is herein remanded pursuant to Sentence Four of § 405(g) for further
proceedings consistent with this Opinion. 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 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 ORDERED THAT:
1. The decision of the Commissioner to deny Plaintiff DIB benefits be REVERSED
and this matter is REMANDED under sentence four of 42 U.S.C. § 405(g) consistent with
this Memorandum of Opinion and Decision;
2. As no further matters remain pending for the Court’s review, this case is
CLOSED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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