Wallace v. Commissioner of Social Security Administration
REPORT AND RECOMMENDATION that Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by 3/17/2017. Signed by Magistrate Judge Terence P. Kemp on 3/3/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Rochelle L. Wallace,
:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Commissioner of Social
REPORT AND RECOMMENDATION
Plaintiff, Rochelle L. Wallace, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.
Those applications were filed on
December 20, 2012, and alleged that Plaintiff became disabled on
February 1, 2012.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on January 26, 2015.
In a decision dated March 11, 2015, the ALJ
That became the Commissioner’s final decision
on February 22, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 20, 2016.
Plaintiff filed a
statement of errors on August 8, 2016, to which the Commissioner
responded on November 17, 2016.
Plaintiff filed a reply brief on
December 5, 2016, and the case is now ready to decide.
Plaintiff’s Testimony at the Administrative Hearing
Plaintiff, who was 44 years old as of the date of the
hearing and who has a twelfth grade education and also went to
cosmetology school, testified as follows.
Her testimony appears
at pages 42-65 of the administrative record.
After describing her current living situation - Plaintiff
lived with her father and her two teenaged children - Plaintiff
was asked about her work history.
She said she had last worked
in 2012 as a self-employed hair stylist.
Before that, she worked
for a company that made circuit boards, but quit that job to go
to school full-time.
She had also been an engraver and had
unloaded freight at a J.C. Penney store.
Lastly, she had worked
for a spark plug manufacturer as an inspector and as a cashier at
a Family Dollar store.
When asked why she could no longer work, Plaintiff said that
she had pain on a daily basis which affected her knees, hips, and
She was also short of breath and had become depressed due
to being unable to work or care for her family.
Prednisone every day and also got a Remicade infusion every five
weeks, a procedure which took close to three hours and which left
her exhausted for several days afterward.
She recently had
surgery on her hand and elbow.
On a typical day, Plaintiff got up at 9:00 or 10:00, put
drops in her eyes, and got dressed.
Sometimes she visited her
mother, but mostly she watched television or went to medical
She said, in response to questions from her
counsel, that she was diagnosed with sarcoidosis in 2012 and that
she took multiple medications for that condition.
Also, as she
got closer to the days on which she received her infusion, her
joints would become very sore and her activities were limited.
Plaintiff also suffered fatigue from the Methotrexate which she
took every Monday.
Her eyes were sensitive to light and she used
drops to combat dryness.
Finally, she described bad headaches
which occurred on a monthly basis and which lasted two or three
The Medical Records
The pertinent medical records are found beginning at page
293 of the administrative record.
They can be summarized as
Chronologically, the first record of significance concerning
Plaintiff’s physical impairments is a questionnaire completed by
He said that he had treated Plaintiff from May
11, 2012 to June 8, 2012 and that she had been diagnosed with
sarcoidosis, Sjogrens syndrome (an immune system disorder), and
Her symptoms included headaches, swollen
eyes, light sensitivity, floaters, painful eyes, and crusting.
She had been on Prednisone.
She had also not returned for a
December, 2012 appointment.
He said he could re-evaluate her if
she returned, and that she was functionally limited due to her
sensitivity to light.
Continuing with the history of Plaintiff’s physical health,
the next group of records which she discusses in her statement of
errors are treatment notes from Dr. Lake, who was a consulting
Dr. Lake saw Plaintiff on December 12, 2012 for
various conditions including sarcoidosis.
At that time,
Plaintiff was being given Remicade infusions.
She was tolerating
the procedure but not noting any significant improvement.
reported some slight blurring of her vision as well.
had acute right ankle pain and swelling.
treatment notes show the same diagnoses and treatment with
prednisone before the Remicade infusions were approved, and
symptoms such as headaches, shortness of breath, chest pain, and
discomfort in the back, hips, knees and ankles.
Dr. Lake continued to see Plaintiff in 2013, reporting on March
21 of that year that Plaintiff still had significant pain despite
taking both Remicade and methotrexate.
Her areas of discomfort
included her hands, wrists, ankles, knees, and hips.
demonstrated discomfort to slight touch throughout the hands and
arms as well as in the lower extremities.
Dr. Lake suggested
that there might be a myofascial component to the pain, and
started her on Cymbalta.
The next report, dated May 29, 2013,
stated that Plaintiff was getting day-long headaches several
times per week and was still having significant pain in her hands
and wrists, with somewhat lesser pain in her knees and hips.
also experienced some swelling in her legs as well as fatigue.
Her Remicade infusions had been increased in frequency but Dr.
Lake said that if she did not improve, the frequency could be
When Dr. Lake saw Plaintiff again in August, 2013 she was
much the same, although she reported increasing shortness of
breath. (Tr. 881-82).
Dr. Lake saw Plaintiff again on March 26,
2014, at which point Plaintiff was put back on methotrexate
(which had been discontinued) due to continued pain in her
She demonstrated diffuse pain but particularly in the
hips, knees, and ankles.
The frequency of her Remicade infusions
Plaintiff returned to Dr. Lake in July, 2014, at
which time she reported improvement in her joint pain, but still
had significant problems in her hands.
Florida and the Dominican Republic.
She had taken a trip to
Dr. Lake increased the
amount of Neurontin she was prescribing.
Dr. Lake was subsequently asked to respond in writing to a
question about whether Plaintiff’s illness would cause her to
miss two or more days of work per month.
Dr. Lake said that such
absences were likely due to flare-ups of Plaintiff’s underlying
disease (described in the question as “sarcoidosis and or
rheumatoid arthritis”) which could cause joint pain, vision
changes, skin rash, shortness of breath, and chest pain, among
other side effects.
Plaintiff also received treatment for her sarcoidosis from
He first saw her on June 8, 2012, noting that
Plaintiff had been reporting breathing problems for many years.
She was treated for asthma but got markedly worse in February of
That exacerbation was treated with prednisone, and she
told Dr. Baughman that her main problem was now headaches.
reviewed various diagnostic studies which showed some lung
abnormalities and concluded that Plaintiff had sarcoidosis.
suggested Remicade infusions as one possible treatment option.
On October 12, 2012, Dr. Baughman reported to Dr. Lake that
Plaintiff was about the same as the last time he saw her.
next report, dated April 9, 2013, indicates that Plaintiff was
still having a problem with aching joints “pretty much all the
Dr. Baughman believed that this symptom was related to
the sarcoidosis and he suggested increasing the frequency of her
He saw Plaintiff again in
July, 2014, noting that Plaintiff was doing fairly well with her
medications but still had problems with her joints, including
being able to retract her hands.
Turning now to Plaintiff’s mental health history, Plaintiff
underwent a diagnostic assessment in 2012 at North Central Mental
In a report dated July 2, 2012, the counselor
noted that Plaintiff was having trouble sleeping and had
decreased appetite, experienced crying spells, and was depressed
three or four days per week.
She had lost interest in activities
and had poor short-term memory.
Her mood and affect were
described as “clearly depressed” and Plaintiff said she had
difficulty getting out of bed.
She was diagnosed with a
depressive disorder and her GAF was rated at 50.
recommended that she continue to follow up with her regular
doctor and take all of her medications as prescribed.
There are also counseling notes from North Central.
appear to begin in October, 2013 and indicate diagnoses of
anxiety and depression.
The notes show generally that Plaintiff
was upset about her physical impairments and that she also had
some family stressors.
Her chronic pain negatively impacted her
She was taking thirteen different medications and going to
medical appointments several times per week.
She was receiving
medication from a psychiatric nurse practitioner.
At one point,
she reported improvement of her symptoms with Risperdal, and her
mood had stabilized to the point where she was enjoying
In 2014, she began a relationship which turned out
to be stressful, but in June of that year she said that her sleep
and appetite were satisfactory although her energy level was
She also canceled a number of appointments between
October, 2013 and August, 2014.
At an appointment
in September, 2014, she said she was feeling depressed but
admitted to not taking all of her medications as prescribed.
Plaintiff still reported significant physical pain and said that
her appetite and energy level had decreased.
She was about the
same the following month, but her mood was better at the next
Plaintiff’s social worker at North Central, Joe Rogers, and
her psychiatrist, Dr. Haq, jointly signed a mental capacity
statement in December, 2014.
They indicated that Plaintiff had
marked impairments in several areas relating to complex or
detailed instructions and also with respect to interaction with
others and responding to work pressure.
did not deal well with stress.
They commented that she
On April 8, 2013, Dr. Hammerly performed a psychological
He conducted a 45-minute clinical interview and did
not administer any psychological testing (although some
intelligence testing may have been done).
Plaintiff said her
disability claim was based on sarcoidosis with its accompanying
pain in her joints and physical limitations.
She had been on
medication for depression since the past summer.
problems sleeping and with increased appetite.
activities including helping her mother, who just had surgery,
and going to medical appointments.
to be affected by chronic pain.
Her gait and posture appeared
She seemed downcast and
expressed feelings of hopelessness, guilt, worthlessness, and
Her mental functioning was grossly intact.
Hammerly diagnosed major depression and rated Plaintiff’s GAF at
He concluded that she could understand work instructions at
an average level, had no problems with concentration,
persistence, or pace, would have some difficulty relating to
others, and would be expected to “respond with decreased
effectiveness when subjected to ordinary workplace pressures.”
State Agency Reviewers
The file also contains opinions from state agency reviewers.
As to Plaintiff’s physical impairments and functional capacity,
Dr. Klyop concluded, on March 5, 2013, that Plaintiff could do a
range of light work with some postural and environmental
limitations, but no manipulative or visual limitations, although
he added at the end of the form, the statement that she was “in
need of light sensitive restrictions due to ischemic
the same conclusions.
Dr. Cruz, on July 22, 2013, reached
Both said that they gave
great weight to Dr. Kaswinkel’s opinion about light sensitivity.
Neither had the chance to review Dr. Lake’s opinion or any of her
letters which were written after July, 2013.
Dr. Goldsmith was the first psychological reviewer.
April 17, 2013, he stated that Plaintiff had sustained
concentration and persistence limitations as well as moderate
limitations on the ability to complete a workday and week without
interruptions from psychologically-based symptoms, but she could
perform simple and routine work activity which was not fast-paced
or had unusual production demands.
She also was moderately
impaired in her ability to relate to the general public and to
supervisors (Tr. 89-91).
The second reviewer, Dr. Seleshi,
concurred on a form which he signed on July 26, 2013.
those reviews predated the bulk, if not the totality, of the
notes from North Central and did not consider the opinion
statement from Dr. Haq.
The Vocational Testimony
Eric Pruitt testified as the vocational expert.
testimony begins on page 66 of the administrative record.
First, Mr. Pruitt was asked to characterize Plaintiff’s past
He said that she did, for the most part, light work,
although one of the jobs was medium, and that the jobs ranged
from unskilled to skilled.
Mr. Pruitt was then asked some questions about a
hypothetical person of Plaintiff’s age, education, and background
who could do light work but could only occasionally climb ramps
and stairs, could never climb ladders, ropes, or scaffolds, and
could frequently stoop, kneel, crouch, and crawl.
He or she also
had to avoid hazards like unprotected heights, dangerous
machinery, and commercial driving.
Also the person could
understand, carry out, and remember simple instructions and make
judgments on simple work, could respond appropriately to usual
work situations and changes in a routine work setting, and was
precluded from high production quotas such as piece work or
assembly line work, strict time requirements, arbitration,
negotiation, confrontation, or directing the work of or being
responsible for the work of others.
Lastly, the person could
have only occasional interaction with supervisors, coworkers, and
the general public.
Mr. Pruitt testified that someone with those
restrictions could do three of Plaintiff’s past jobs - parts
inspector, machine engraver, and pre-assembly printed circuit
Also, such a person could work as a production
line solderer, mail sorter, and label coder.
Next, Mr. Pruitt was asked about a person who, in addition
to the above limitations, could only handle, finger, and feel
with the dominant hand on a frequent basis.
ruled out the circuit board inspector position, but not the
If the person could do those activities on only an
occasional basis, however, all of the jobs would be eliminated,
but the person could be employed as a blending tank tender and in
other positions which totaled about 100,000 in the national
If, however, the person missed one or two days of work
each month, that would result in termination from all of the jobs
Mr. Pruitt was also asked some questions by Plaintiff’s
In response to those questions, he testified that
someone who is markedly limited in dealing with complex job
instructions, interacting with others, and responding to changes
in the work setting was not employable.
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 1327 of the administrative record.
The important findings in that
decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
meets the insured status requirements of the Social Security Act
through December 31, 2017.
Second, he found that Plaintiff had
not engaged in substantial gainful activity since her alleged
Going to the next step of the sequential evaluation
process, the ALJ concluded that Plaintiff had severe impairments
including sarcoidosis, carpal tunnel syndrome and mild
osteoarthritis of the left hand, obesity, and major depression.
The ALJ also found that these impairments did not, at any time,
meet or equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff could do light work but
could only occasionally climb ramps and stairs, could never climb
ladders, ropes, or scaffolds, and could frequently stoop, kneel,
crouch, and crawl.
She could frequently handle, finger, and feel
with the left upper extremity.
She also had to avoid hazards
like unprotected heights, dangerous machinery, and commercial
driving, and could understand, carry out, and remember simple
instructions and make judgments on simple work.
He also found
that Plaintiff could respond appropriately to usual work
situations and changes in a routine work setting but was
precluded from high production quotas such as piece work or
assembly line work, strict time requirements, arbitration,
negotiation, confrontation, or directing the work of or being
responsible for the work of others.
Finally, she could have only
occasional interaction with supervisors, coworkers, and the
With these restrictions, the ALJ concluded that Plaintiff,
could perform two of her past jobs, machine engraver and parts
Further, she could do the light jobs identified by
the vocational expert, including production line solderer, mail
sorter, and label coder.
He also found that those jobs existed
in significant numbers in the local, state, and national
Consequently, the ALJ decided that Plaintiff was not
entitled to benefits.
Plaintiff’s Statement of Errors
In her statement of errors, Plaintiff raises a single issue.
She argues that the ALJ did not properly consider and weigh the
medical source opinions and, as a result, his finding about
Plaintiff’s residual functional capacity was not supported by
This issue is considered under the
following legal standard.
General Standard of Review.
Under the provisions of 42
U.S.C. Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."
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) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
It is "'more than a mere
LeMaster v. Weinberger, 533 F.2d 337, 339 (6th
The Commissioner's findings of fact must be based
upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435
(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
In determining whether the Commissioner's decision is
supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).
Even if this Court
would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.
Kinsella v. Schweiker, 708
F.2d 1058, 1059 (6th Cir. 1983).
Treating Source Opinions.
A treating physician's opinion is
entitled to weight substantially greater than that of a
nonexamining medical advisor or a physician who saw plaintiff
Lashley v. Secretary of H.H.S., 708 F.2d 1048, 1054
(6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D.
A summary by an attending physician made over a
period of time need not be accompanied by a description of the
specific tests in order to be regarded as credible and
Bull v. Comm’r of Social Security, 629 F.Supp. 2d
768, 780-81 (S.D. Ohio 2008), citing Cornett v. Califano, No. C1-78-433 (S.D. Ohio Feb. 7, 1979).
A physician's statement that plaintiff is disabled is not
determinative of the ultimate issue.
The weight given
such a statement depends on whether it is supported by
sufficient medical data and is consistent with other evidence
in the record.
20 C.F.R. §404.1527; Harris v. Heckler, 756 F.2d
431 (6th Cir. 1985).
In evaluating a treating physician’s
opinion, the Commissioner may consider the extent to which that
physician’s own objective findings support or contradict that
Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v.
Secretary of HHS, 901 F.2d 1306 (6th Cir. 1990).
Commissioner may also evaluate other objective medical evidence,
including the results of tests or examinations performed by nontreating medical sources, and may consider the claimant’s
activities of daily living.
Cutlip v. Secretary of HHS, 25 F.3d
284 (6th Cir. 1994).
If not contradicted by any substantial evidence, a treating
physician's medical opinions and diagnoses are afforded complete
Harris, 756 F.2d at 435.
The Commissioner may have
expertise in some matters, but cannot supplant the medical
Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963).
The "treating physician" rule does not apply to a one-time
examining medical provider, and the same weight need not be given
to such an opinion even if it favors the claimant.
Shalala, 40 F.3d 789 (6th Cir. 1994).
If the Commissioner does not give controlling weight to the
opinion of a treating physician, the Commissioner is required to
explain what weight has been assigned to that opinion, and why.
Failure to articulate the reason for discounting such an opinion
with a level of specificity that allows the claimant to
understand why his physician’s views have not been accepted, and
to allow the Court to review the ALJ’s bases for making that
decision, is almost always reversible error.
Rogers v. Comm’r of
Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Wilson v.
Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004).
Analysis of Plaintiff’s Statement of Error
The starting point in any case where the ALJ allegedly has
not given appropriate weight to the treating source opinions is
the ALJ’s decision itself.
Since there are a number of treating
sources at issue here, the Court will examine the decision’s
rationale as to each.
The Court begins with Dr. Kaswinkel, who, as noted above,
concluded that Plaintiff had a functional limitation in the area
of sensitivity to light, and whose opinion was given great weight
by the two state agency reviewers who expressed opinions about
Plaintiff’s physical limitations.
That restriction does not
appear in the ALJ’s residual functional capacity finding.
Kaswinkel is not mentioned in the ALJ’s summary of the evidence
and his opinion was not acknowledged.
The ALJ said that he gave
some weight to the opinions of the state agency physicians as
being “derived from and consistent with the medical evidence of
record,” Tr. 23, but he concluded that the evidence given at the
hearing supported “additional limitations” which he added to the
ones they proposed.
Nothing in the ALJ’s decision suggests
that he considered Dr. Kaswinkel to be a treating source or that
he was even aware that the state agency reviewer’s had given
great weight to it.
The Commissioner suggests that this omission was harmless
error because Dr. Kaswinkel was really not a treating source - he
did treat Plaintiff but only saw her twice - and because no
reasonable person could have accepted his “patently deficient
See Doc. 14, at 11.
This appears to be a reference to
the Court of Appeals’ observation in Wilson that the failure to
articulate the basis for evaluating a treating source opinion as
required by §404.1527(c) can be harmless error “if a treating
source's opinion is so patently deficient that the Commissioner
could not possibly credit it....”
See id. at 547.
That is a
difficult argument to make when two state agency physicians whom
the ALJ described as “experts” and “medical doctors with
knowledge of the Social Security Administration’s program and
requirements,” Tr. 23, apparently thought otherwise.
Kaswinkel was a specialist in eye diseases and based his opinion
on two examinations.
There is nothing patently deficient about
Even if he did not see Plaintiff often enough to qualify
for full consideration as a treating source, the ALJ’s complete
failure to acknowledge that opinion, to discuss it, or to
recognize that the state agency physicians gave it weight, is
enough to justify a remand.
Cf. Gayheart v. Comm’r of Social
Security, 710 F.3d 365, 378 (6th Cir. 2013)(pointing out that the
considerations set forth in §404.1527(c) apply to all medical
sources, and that some discussion should be included in an ALJ’s
decision even of opinions from persons who are not “acceptable
Dr. Lake, unlike Dr. Kaswinkel, was the subject of some
considerable discussion in the ALJ’s decision.
regarded as a treating source.
She was correctly
However, the ALJ rejected her
opinion about how often Plaintiff would suffer from increased
symptoms, and therefore miss work, for these reasons.
ALJ said that “the [probably should be “she] references the
claimant to have rheumatoid arthritis, which ... is not a
medically determinable impairment in this claim.”
Next, the ALJ said that the “record as a whole” does not support
this limitation because, as the ALJ interpreted the record,
Plaintiff sarcoidosis was “well controlled with current
Finally, the ALJ appeared to suggest that the
basis of Dr. Lake’s opinion was Plaintiff’s own report of
symptoms since Dr. Lake’s own notes were “rather benign in the
discussion of physical findings.”
One of the problems with this analysis is the ALJ’s attempt
to characterize Dr. Lake as both having diagnosed Plaintiff with
rheumatoid arthritis and as having attributed her flare-ups to
No reasonable person could conclude, based on a
fair reading of the record, that Dr. Lake’s reference, in her
note of December 29, 2014, to Plaintiff’s “underlying disease”
was a reference to rheumatoid arthritis.
Plaintiff for years for sarcoidosis.
Dr. Lake had treated
Sarcoidosis was mentioned
in the typewritten question on the form.
The ALJ has a duty to
construe the record fairly rather than to engage in a stretched
or selective reading in order to be able to give less weight to a
treating source opinion.
See, e.g., Germany-Johnson v. Comm’r of
Social Security, 313 Fed.Appx. 771, 777 (6th Cir. Nov. 5,
2008)(criticizing the ALJ for being “selective in parsing the
various medical reports”); Herron v. Shalala, 19 F.3d 329, 333
(7th Cir. 1994)(“[w]e have repeatedly stated that the ALJ's
decision must be based upon consideration of all the relevant
Consequently, the first basis on which the ALJ
discounted Dr. Lake’s opinion is not a “good reason” to do so.
Secondly, it appears that the ALJ engaged in his own
interpretation of the medical evidence in order to discount Dr.
Sarcoidosis is not the same type of disease as,
for example, degenerative disk disease, which produces specific
findings that are typically present during a physical
It was not for the ALJ to determine that what he
called “relatively benign physical findings” on examination meant
that Plaintiff did not suffer from periodic exacerbations of her
disease, leading to the kind of pain and inflammation that would
prevent her from doing a full day’s work.
In making that
determination, he essentially ignored the lengthy treatment
history, spanning several years and multiple visits, present in
the record, which placed Dr. Lake in a unique position to
evaluate the severity of Plaintiff’s symptoms.
The ALJ also
failed to discuss the course of treatment, which, read
reasonably, showed that Plaintiff’s symptoms worsened over time,
leading to the initiation of new therapies like Remicade
infusions, and an increase in medications because her symptoms
were not responding.
These are all relevant factors under
§404.1527(c), and the ALJ’s failure to consider them, especially
given the extent of this treatment history, prevents the Court
from finding that he discharged his responsibility under that
regulation and decisions like Wilson, supra and Rogers, supra.
This is especially true where, as here, the ALJ appeared to base
much of his residual functional capacity finding (except for some
additional postural restrictions) on the opinions of the state
agency reviewers, neither of whom had the opportunity to review
either the extensive treatment notes from Dr. Lake or Dr.
Baughman, and who did not have a chance to consider her opinion.
The final set of treating source opinions relate to
Plaintiff’s psychological impairments.
The Court does not
believe that an extensive discussion of the ALJ’s evaluation of
the opinion of Dr. Haq and the social worker is necessary in
light of the need to remand the case for other reasons.
important to note, however, that the main issue flagged by the
opinion signed by both of those treating sources is Plaintiff’s
ability to handle work stress.
The ALJ gave great weight to Dr.
Hammerly’s opinion, and he noted the same problem.
the ALJ should insure that he gives adequate weight to Dr. Haq’s
opinion, including determining the frequency with which Plaintiff
was treated by him; that he considers the social worker’s opinion
using proper evaluation tools even though the social worker is
not an “acceptable medical source,” see Gayheart, supra; and that
he considers whether the state agency opinions on this issue are
still valid in light of the subsequent mental health treatment
received by Plaintiff, and which they had no opportunity to
Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner pursuant to 42 U.S.C.
§405(g), sentence four.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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