Malone v. Commissioner of Social Security

Filing 18

ORDER adopting Report and Recommendations re 15 Report and Recommendations re IRS Summons. Signed by Judge James L. Graham on 3/9/2016. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Melissa S. Malone,
Plaintiff,
v.

Case No. 2:15-cv-78

Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Melissa S. Malone brings this action under 42 U.S.C.
§§ 405(g) for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying her applications for a
period of disability and disability insurance benefits.

In a

decision issued on August 28, 2013, the administrative law judge
(“ALJ”)

determined

that

plaintiff

had

severe

impairments,

specifically, diabetes mellitus and a depressive disorder.
65.

Plaintiff’s

residual

functional

capacity

PAGEID

(“RFC”),

as

formulated by the ALJ, included some physical limitations, as well
as the following mental limitations:
Mentally, she retains the ability to perform 1 to 4 step
tasks with no multi-tasking, and no requirement for rapid
task completion. Her interaction with others needs to be
on a conventional level, without conflict resolution or
persuading others. Further, the claimant should work in
a static work environment where change is explained and
gradually introduced.
PAGEID 67.

The ALJ found that plaintiff was unable to perform her

past relevant work as a home health aide, dental assistant and
general office clerk, but that there were jobs identified by the
vocational expert which plaintiff could perform, and that plaintiff

was not disabled.

PAGEID 71-73.

In a report and recommendation filed on February 18, 2016, the
magistrate judge addressed the arguments made by plaintiff in her
statement of errors, which related solely to her mental, nonexertional limitations. Plaintiff argued that the ALJ’s evaluation
of the opinion of Dr. Muhammad Kahn, M.D., plaintiff’s treating
physician, was not supported by substantial evidence, and that the
ALJ failed to provide good reasons for the weight he assigned to
Dr. Kahn’s opinion.

The magistrate judge concluded that the ALJ

failed to comply with the rules for considering the opinion of a
treating source, and that the case should be remanded for further
proceedings.

This matter is before the court for consideration of

the Commissioner’s February 23, 2016, objections to the report and
recommendation.

Plaintiff has filed a response to the objections.

I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,

2

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”). Even if supported by substantial evidence,
however, “‘a decision of the Commissioner will not be upheld where
the [Commissioner] fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Commissioner’s Objections
The Commissioner objects to the finding of the magistrate
judge that the ALJ failed to follow the treating physician rules in
considering Dr. Kahn’s opinion.

The Commissioner has issued a

policy statement, Social Security Ruling 96-2p, 1996 WL 374188
(Soc. Sec. Admin. July 2, 1996), to guide an ALJ’s assessment of a
treating-source opinion.

Treating-source opinions must be given

“controlling weight” if: (1) the opinion “is well-supported by
medically

acceptable

clinical

and

laboratory

diagnostic

techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”

See 20 C.F.R.

§404.1527(c)(2); Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *2-3.
Even if the opinion of the treating doctor does not meet these
“controlling weight” criteria, this does not mean that the opinion
must be rejected; rather, it “may still be entitled to deference
and be adopted by the adjudicator.” Soc. Sec. Rul. No. 96-2p, 1996
WL 374188 at *1.

If the Commissioner does not give a treating-

source opinion controlling weight, then the opinion is weighed
based on factors such as the length, frequency, nature, and extent

3

of the treatment relationship, the treating source’s area of
specialty, and the degree to which the opinion is consistent with
the record as a whole and is supported by relevant evidence.

20

C.F.R. §404.1527(c)(2)-(6); Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 376 (6th Cir. 2013).
The Commissioner is required to provide “good reasons” for
discounting

the

§404.1527(c)(2).

weight

given

to

a

treating-source

opinion.

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; Rogers, 486 F.3d at
242.

However, a formulaic recitation of factors is not required.

See Friend v. Comm’r of Soc. Sec., 375 F.App’x 543, 551 (6th Cir.
2010). There is also no requirement that the ALJ expressly address
each of the §404.1527(c) factors within the written decision.
Tilley v. Comm’r of Soc. Sec., 392 F.App’x 216, 222 (6th Cir.
2010).

Likewise, an ALJ need not discuss every piece of evidence

in the record for his decision to stand, Karger v. Comm’r of Soc.
Sec., 414 F.App’x 739, 753 (6th Cir. 2011), and an ALJ’s failure to
cite

specific

evidence

does

not

indicate

that

it

was

not

considered, Simons v. Barnhart, 114 F.App’x 727, 733 (6th Cir.
2004).
The magistrate judge noted that the June 1, 2010, treatment
records of Dr. Kahn, plaintiff’s primary care physician, revealed
that plaintiff complained on that date about anxiety and panic
attacks, with crying, hand tremors, and shortness of breath.
Doc. 15, p. 3.

See

Dr. Kahn diagnosed anxiety and panic attacks and

4

prescribed medication. The magistrate judge observed that Dr. Kahn
continued

to

treat

plaintiff

with

prescribed

medication

for

depression and anxiety, as reflected in treatment notes spanning
from 2010 to January of 2012.
Dr.

Kahn

completed

a

form

Doc. 15, p. 3.
which

included

On March 4, 2013,
his

opinion

that

plaintiff’s condition was likely to deteriorate if she were placed
under stress associated with a job, that she was likely to have
partial or full-day unscheduled absences from work occurring five
or more days per month due to her conditions and/or the side
effects of her medications, and that, due to plaintiff’s history of
depression, anxiety, and panic attacks, she cannot work in stress
conditions and may have to take unscheduled time off from work.
The ALJ gave Dr. Kahn’s opinion some weight on the subject of
plaintiff’s physical limitations, then noted that
Dr. Kahn attempts to use mental diagnoses for the support
of the physical capacities assessment. This doctor is
not a mental health specialist, and has only treated
claimant for diabetes and low back pain since August
2012[.]
PAGEID 70.

The ALJ also based the weight given to Dr. Kahn’s

opinion on a treatment record indicating that plaintiff denied
having any anxiety or depression during a September 18, 2012,
office visit.

PAGEID 70.

The court agrees with the conclusions of the magistrate judge.
The magistrate judge found that the ALJ’s failure to consider Dr.
Kahn’s treatment records prior to August 2012 resulted in his
opinion not being supported by substantial evidence.

Doc. 15, p.

11. As the magistrate judge noted, the ALJ apparently rejected Dr.
Kahn’s opinion regarding plaintiff’s mental impairments based in
part on the mistaken belief that Dr. Kahn had not treated plaintiff
5

for mental impairments and had only treated her since August of
2012, when in fact Dr. Kahn’s treatment notes reveal that he began
treating plaintiff for mental symptoms in June of 2010.
words,

this

is

not

a

case

where

the

ALJ

simply

In other
failed

to

specifically address all of the §404.1527(c) factors; rather, the
ALJ’s opinion affirmatively indicates that his analysis of those
factors was flawed.

The magistrate judge also noted that the

September 18, 2012, office visit was for a “well woman exam” and
physical, and that Dr. Kahn’s failure to fill out the check-box
portion of the treatment record regarding any mental impairments
was his usual practice even on the occasions where plaintiff
specifically
attacks.

presented

with

complaints

of

anxiety

and

panic

Doc. 15, p. 10.

The Commissioner notes that the ALJ referred in other sections
of his opinion to exhibit numbers which included Dr. Kahn’s
treatment notes, and argues that the ALJ must have considered them.
However, the ALJ’s erroneous and ambiguous statement that Dr. Kahn
only treated plaintiff for back problems starting in August of 2012
raises the possibility that he overlooked some part of Dr. Kahn’s
treatment records.

The Commissioner also argues that any of Dr.

Kahn’s treatment notes prior to May 1, 2011, the alleged onset of
disability date, have less relevance, that his notes after that
date do not support a finding of disability, and that plaintiff’s
conservative treatment regime and Dr. Kahn’s failure to refer
plaintiff to a mental health specialist all undermine Dr. Kahn’s
opinion concerning the severity of plaintiff’s symptoms.

These

arguments may or may not be valid. However, they are matters which
should be considered and weighed in the first instance by the ALJ.
That did not occur in this case.

The ALJ’s brief discussion of Dr.
6

Kahn’s opinion is not “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.”
Rogers, 486 F.3d at 242.

The Commissioner’s objections are not

well taken.
III. Conclusion
For the foregoing reasons, the court adopts and affirms the
magistrate

judge’s

report

and

recommendation

(Doc.

15),

and

overrules the Commissioner’s objections (Doc. 16). The decision of
the Commissioner is reversed, and this action is remanded to the
Commissioner and the ALJ under sentence four of 42 U.S.C. §405(g)
for further consideration of the record consistent with this order
and the report and recommendation.
the ultimate issue of disability.

The court makes no ruling on
The clerk is directed to enter

final judgment in this case.
It is so ordered.

Date: March 9, 2016

s/James L. Graham
James L. Graham
United States District Judge

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