Jackson v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR AN IMMEDIATE AWARD OF BENEFITS; AND (3) THE CASE BE CLOSED. Objections to R&R due by 7/12/2013. Signed by Magistrate Judge Michael J Newman on 6/25/2013. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BARBARA L. JACKSON,
Plaintiff,

:

Case No. 3:12-cv-100

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

vs.

:

COMMISSIONER OF
SOCIAL SECURITY,

:

Defendant.

:

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR AN IMMEDIATE AWARD OF
BENEFITS; AND (3) THE CASE BE CLOSED.

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income
(“SSI”). This case is before the Court upon Plaintiff’s Statement of Specific Errors (doc. 9), the
Commissioner’s Memorandum in Opposition (doc. 11), Plaintiff’s Reply (doc. 12), the
administrative record2 (doc. 6), and the record as a whole.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.

I. BACKGROUND
A. Procedural History
Plaintiff filed applications for DIB and SSI on March 14, 2008, asserting that she has
been under a “disability” since November 4, 2007. PageID 178-81. Plaintiff claims she is
disabled due to fibromyalgia, impaired fine motor skills, tremors, cognitive thinking problems,
recovering alcoholism, bipolar disorder, and depression. PageID 136.
Following initial administrative denials of her application, an administrative hearing was
conducted before ALJ Amelia Lombardo on June 29, 2010. PageID 79-116. On September 17,
2010, ALJ Lombardo issued a written decision, concluding that Plaintiff was not “disabled.”
PageID 51-72. Specifically, the ALJ’s “Findings,” which represent the rationale of her decision,
were as follows:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2013;

2.

The claimant has not engaged in substantial gainful activity since
November 4, 2007, the alleged onset date (20 CFR §§ 404.1571 et seq.,
and 416.971 et seq.);

3.

The claimant has the following severe impairments: degenerative disc
disease of the cervical, thoracic, and lumbar spine; osteoarthritis of the
right hip; chronic left ankle instability with residual effects of the ligament
reconstructions; obesity; depression; and alcohol abuse in remission (20
CFR §§ 404.1520(c) and 416.920 (c));

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926);

5.

After careful consideration of the entire record, the [ALJ] finds that the
claimant has the residual functional capacity [“RFC”] to perform light
work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) with the
following additional limitations: alternate sitting and standing every 30
minutes, occasional stooping and crouching; occasional overhead reaching

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bilaterally, unskilled work; and low stress work described as no assemblyline production quotas and not fast paced;
6.

The claimant is unable to perform any past relevant work (20 CFR
§§ 404.1565 and 416.965);

7.

The claimant was born on April 21, 1956 and was 51 years old, which is
defined as an individual closely approaching advanced age, on the alleged
disability onset date (20 CFR §§ 404.1563 and 416.963);

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR §§ 404.1564 and 416.964);

9.

Transferability of job skills is not material to the determination of
disability because using Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2);

10.

Considering the claimant’s age, education, work experience, and [RFC],
there are jobs that exist in significant numbers in the national economy
that the clamant can perform (20 CFR §§ 404.1569, 404.1569(a), 416.969,
and 416.969(a));

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from November 4, 2007, through the date of this decision
(20 CFR §§ 404.1520(g) and 416.920(g)); [and]

12.

The claimant’s substance use disorder(s) is not a contributing factor
material to the determination of disability (20 CFR §§ 404.1535 and
416.935).

PageID 51-64.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 43-45. See
also Casey v. Sec’y of H.H.S., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this
timely appeal on April 4, 2012. Doc. 2.

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B. Plaintiff’s Hearing Testimony
At the administrative hearing, Plaintiff testified that she lives alone in a first-floor
apartment. PageID 82. She has a high school education, and has previously worked as a
medical biller, pharmacy technician, store manager, receptionist, and customer service
representative. PageID 83-85.
Regarding her mental impairments, Plaintiff testified that she experiences bouts of
deep depression, during which she isolates herself, does not shower or perform household
chores, and frequently cries. PageID 98. Plaintiff stated her last episode of depression
lasted three weeks. Id. During that time, Plaintiff cried every day. PageID 98-100. She
testified that, on average, she cries fifteen days a month. PageID 103. Plaintiff also testified
that she has suicidal thoughts, and experiences panic attacks at least once per month due to
hypervigilence. PageID 102-03.
In addition, Plaintiff testified that she has difficulty maintaining concentration,
cannot comprehend what she is being asked, and is forgetful. PageID 101. She further
testified that she experiences visual hallucinations, which she believes are a side effect of her
medication. PageID 92-93. She stated that she goes to individual and/or group therapy threeto-four days per week. PageID 89, 99. Plaintiff acknowledged having problems with alcohol
in the past but, at the time of the hearing, she testified she has been sober for approximately three
years. PageID 86.
Plaintiff also testified the pain she experiences significantly interferes with her physical
abilities. PageID 96-98. Plaintiff estimates that she can walk approximately five minutes at a
time. PageID 96-97. While she acknowledged complying with her physician’s orders to take
short, periodic walks, Plaintiff stated that they have not improved her ability to walk further

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without incident. Id. Plaintiff testified that she can only stand for three to four minutes at a time,
after which she begins shaking. PageID 97. She stated that she struggles to sit because it causes
pain. Id. As a result of her medications, Plaintiff’s hands tremor, and she often loses control of
objects she holds. PageID 97, 103-04.
Plaintiff additionally testified that she experiences pain daily and, although
medication does help, she is never fully relieved from the pain. PageID 96. Daily activities
such as washing the dishes and vacuuming hurt her back, and it may take her days to recover
from performing such tasks. Id. Due to the recovery time, Plaintiff stated that she often
neglects her household chores. Id. Plaintiff also testified that, due to the pain, she does not
have motivation, is weak, and frequently takes naps. PageID 107.
C. Vocational Expert Testimony
Mark Pinti, a Vocational Expert (“VE”), testified at the hearing. See PageID 108-13.
The VE testified that, based on Plaintiff’s age, education, RFC, and work experience, she
could not perform her past relevant work. PageID 110. Nonetheless, given her RFC, the VE
testified that Plaintiff could perform approximately 10,000 jobs at the light exertional level,
such as a laundry folder or machine tender. PageID 111-12.
II. APPLICABLE LAW
A. Substantial Evidence Standard
The Court’s inquiry on appeal is to determine: (1) whether the ALJ’s non-disability
finding is supported by substantial evidence; and (2) whether the ALJ employed the correct legal
criteria. 42 U.S.C. §§ 405(g), 1383(c)(3)3; Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46
3

The remaining citations will identify the pertinent DIB regulations with full knowledge
of the corresponding SSI regulations.

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(6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
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). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found a claimant
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the SSA fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”
Bowen, 478 F.3d at 746.
B. “Disability” Defined
To be eligible for DIB and/or SSI benefits, a claimant must be under a “disability” as
defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory
meaning, a “disability” includes physical and/or mental impairments that are both “medically
determinable” and severe enough to prevent a claimant from: (1) performing his or her past job;
and (2) engaging in “substantial gainful activity” that is available in the regional or national
economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the

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ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the Listings), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); Miller v. Comm’r of Soc. Sec., 181 F. Supp. 2d 816, 818 (S.D. Ohio
2001). A claimant bears the ultimate burden of establishing that he or she is “disabled” under
the Social Security Act’s definition. Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997).
III. ANALYSIS
Plaintiff argues that the ALJ erred with regard to her mental impairments by refusing to
give controlling weight to the opinions of treating psychiatrists, Maria Mathias, M.D. and Dong
Moon, M.D., as well as her treating primary care physician, Robert Sawyer, M.D. Doc. 9 at
PageID 1614-21.

For the reasons that follow, the Court finds Plaintiff’s argument to be

meritorious, and the ALJ’s findings to be unsupported by substantial evidence.

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A. Treating Mental Health Professionals4
1. Dr. Mathias
Plaintiff began treatment at South Community, Inc., a mental healthcare facility, in
February 2008. See PageID 1156-59. In addition to seeing therapists and nurses, Plaintiff was
treated by Dr. Mathias, a psychiatrist at South Community. Id. On February 22, 2008, Dr.
Mathias initially examined Plaintiff and observed her to be depressed, agitated, irritable, restless,
and intense. Id. Dr. Mathias diagnosed Plaintiff with bipolar disorder, alcohol dependence, and
post-traumatic stress disorder (“PTSD”). Id. She also assigned a GAF score of 45-50.5 PageID
1158.
On October 22, 2008, Dr. Mathias reported the same diagnoses as in February 2008, and
noted Plaintiff’s “increased anxiety” and “fleeting suicidal ideation.” PageID 984. Dr. Mathias
also reported that Plaintiff had gained 22 pounds during the previous two months, and was
increasingly tearful -- which she noted were objective signs of Plaintiff’s depression. Id. Dr.
Mathias stated, “[Plaintiff] has a chronic mental health condition, Bipolar Disorder, which at this
point is not stable and would limit her from working. Mood is only one symptom of Bipolar
Disorder and it is no longer stable as noted by the above symptom of suicidal ideation.” Id. Dr.
4

Although Plaintiff’s medical records have been adequately summarized in her Statement
of Errors, the Commissioner’s memorandum, and the ALJ’s decision, see doc. 9 at PageID 160413; see doc. 11 at PageID 1628-32; PageID 51-64, and the Court will not fully repeat them
entirely here, Plaintiff’s assignment of error necessitates a discussion of the opinions of Drs.
Mathias, Moon, and Sawyer.
5
A Global Assessment of Functioning (“GAF”) score of 45-50 (41-50, inclusively)
indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g. no
friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders, 34 (4th
ed. 2000) (“DSM-IV”).

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Mathias’ assessment is substantiated by her treatment notes, which additionally document
Plaintiff’s fatigue, hair loss as a side effect of medication, and tremors. PageID 871, 873, 875.
In July 2009, Dr. Mathias co-signed interrogatories along with Cynthia VanAusdal, R.N.,
a South Community advanced practice psychiatric nurse with prescriptive authority, see PageID
1041-49, which report their shared shared opinion that Plaintiff is unable, among other activities,
to be prompt and regular in attendance; respond appropriately to supervision, co-workers, and
customary work pressures; withstand the pressure of meeting normal standards of work
productivity and work accuracy; sustain attention and concentration to meet normal standards of
work productivity; maintain concentration and attention for extended periods; perform activities
within a schedule, maintain regular attendance and be punctual; complete a normal workday and
workweek without interruption from psychologically and/or physically based symptoms; respond
appropriately to changes in a routine setting; and get along with co-workers or peers without
unduly distracting them or exhibiting behavior extremes, owing to stress and anxiety. Id.
2. Dr. Moon
Dr. Moon began treating Plaintiff on January 2, 2008. PageID 434. Following his initial
psychiatric evaluation, Dr. Moon diagnosed Plaintiff with bipolar disorder NOS, and reported
Plaintiff to be markedly6 limited in her ability to: perform activities within a schedule; maintain
regular attendance; sustain an ordinary routine without special supervision; work in coordination
or proximity to others without being distracted by them; complete a normal workday or
workweek without interruptions from psychologically-based symptoms; interact appropriately
with the general public; get along with coworkers/peers without distracting them or exhibiting
6

Whereas “moderate” functional limitations are “non-disabling,” see Sims v. Comm’r of
Soc. Sec., 406 F.App’x 977, 980 (6th Cir. 2011), “marked” and “extreme” limitations are
suggestive of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(C) et seq.
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behavioral extremes; maintain socially appropriate behavior; and adhere to basic standards of
neatness and cleanliness. PageID 431, 711. Dr. Moon also opined, at that time, that Plaintiff
was unemployable. PageID 709.
Dr. Moon’s treatment notes document Plaintiff experiencing mood swings, crying spells,
shakiness, and nightmares. PageID 434-36. They also include his objective observations of
Plaintiff’s anxiousness, frustration, restlessness, agitation, and depression. Id. In March 2008,
Dr. Moon responded to a Bureau of Disability Determination questionnaire, in which he opined,
“[a]s of 1/23/08, [Plaintiff is] not able to tolerate any work related stress.” PageID 438-40.
3. Dr. Sawyer
Dr. Sawyer, an internist, began treating Plaintiff in August 2006, and continued treatment
through the date of the administrative hearing. PageID 1586-91. Over the years, he treated
Plaintiff for a number of physical impairments, as well as her mental impairments. Id. In
responding to interrogatories in June 2010, Dr. Sawyer noted the effects of Plaintiff’s “chronic
depression with overlapping bipolar disorder.” PageID 1586. Specifically, he opined that
Plaintiff’s mental impairments exacerbate her complaints of severe pain, stating: “[Plaintiff’s]
bipolar disorder makes coping strategies and response to stressors poor” and her “prior suicide
attempt [in November 2007] caus[ed her] admission to [the] Kettering Medical Center….”
PageID 1588. Dr. Sawyer also opined that Plaintiff would be unable to: be prompt and regular in
her attendance if employed; respond appropriately to supervision, co-workers, and customary
work pressures; withstand the pressure of meeting normal standards of work activity; behave in
an emotionally stable manner; relate predictably in social situations; demonstrate reliability;
perform activities within a schedule and maintain regular attendance; and/or complete a normal

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work day and work week without interruption from psychologically and/or physically-based
symptoms. PageID 1588-91.
In addition, Dr. Sawyer noted that Plaintiff has a history of suicidal ideation, which is
exacerbated by stressful situations.

PageID 1588.

Specifically, he stated: “[Plaintiff’s]

workplace previously contributed significantly to decompensation and in all likelihood would do
so again in the future.” Id. Regarding Plaintiff’s inability to handle stress, Dr. Sawyer added,
“[u]nfortunately, [Plaintiff] previously responded to stress of work with self-medication with
alcohol. [She] has been abstinent with alcohol as of late but certainly at risk for recurrent abuse
with work stressors.” PageID 1589. Dr. Sawyer further noted that Plaintiff has a history of
“excessive emotional outbursts” at her previous jobs; “demonstrated conflict when interacting
with other clients in group therapy when under stress”; and was “terminated from [her] last place
of employment due to [her] unreliability.” PageID 1590.
B. Treating Physician Rule
Generally, the opinions of treating physicians are entitled to controlling weight. Cruse v.
Com’r of Soc. Sec., 502 F. 3d 532, 540 (6th Cir. 2007). Under the “treating physician rule,” the
ALJ is required to “generally give greater deference to the opinions of treating physicians than
the opinions of non-treating physicians because: ‘these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.’” Blakey v. Comm’r of Soc. Sec., 581
F.3d 399, 406 (6th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)). Thus, an ALJ must give
controlling weight to a treating source, so long as he or she finds the opinion well supported by

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medically acceptable data, and not inconsistent with other substantial evidence in the record.
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R.
§ 404.1527(d)(2)).
In accordance with this rule, the ALJ must give “good reasons” for the ultimate weight
afforded the treating physician’s opinion, based on the evidence in the record, and these reasons
must be sufficiently specific to enable meaningful review of the ALJ’s decision. Wilson, at id.
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.” Social Security Ruling 96-2p, 1996
SSR LEXIS 9, at *11-12, 1996 WL 374188, at *5 (July 2, 1996).

The ALJ’s failure to

adequately explain the reasons for the weight given a treating physician’s opinion “denotes a
lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon
the record.” Blakley, 581 F.3d at 407.
C. The ALJ Improperly Weighed the Mental Health Opinions of Record
In rejecting the opinions of Drs. Mathias, Moon, and Sawyer, the ALJ provided the
following limited analysis:
When evaluated pursuant to the above regulations, neither the opinion of Dr.
Sawyer or Dr. Mathias or Dr. Moon can be given controlling, or even significant
weight.… The majority of Dr. Sawyer’s opinion involves the claimant’s mental
functioning. As he is not a mental health professional, his opinion in this area is
afforded little weight. In any event, the claimant has repeated[ly] told Dr. Sawyer
that she is doing well mentally, statements which are echoed in her treatment
notes from South Community. As his opinions are not supported by and are
inconsistent with other medical evidence, they are given little weight. Dr.
Mathias did not even opine that the claimant was permanently and totally
disabled. Her pessimistic assessment is inconsistent with her treatment notes
which demonstrate that after just a few months of therapy, the claimant was
“functioning fairly well -- mood cognitively and relating to others” and was
“progressing well in general” [citing PageID 859, 864]. Dr. Moon was not a
treating source when he completed a form for a local welfare agency, having only
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seen the claimant once, and in any event, in neither document does he indicate
that the claimant would be permanently and totally disabled because of her mental
impairments.
PageID 61. The ALJ gave no other reasons for rejecting these three opinions. As such, the
Court finds the ALJ’s analysis deficient, and unsupported by substantial evidence.
Social Security regulations require the ALJ, when weighing opinions of treating and nontreating sources, to consider a number of factors, including:

the length of the treatment

relationship; the frequency of examination; the supportability of the opinion; the consistency of
the opinion with the record as a whole; and the specialization of the treating physician. 20 C.F.R.
§ 404.1527; Wilson, 378 F. 3d at 544. Opinions of one-time examining physicians, recordreviewing physicians, and Medical Experts who testify during administrative hearings must also
be weighed under these same factors. See 20 C.F.R. § 404.1527(d)-(f); see also Social Security
Ruling 96-6p.
Here, the ALJ failed to conduct a proper analysis under the regulations with regard to the
opinions of Drs. Sawyer, Mathias, or Moon. While the Court recognizes that Dr. Sawyer is not a
mental health specialist, this is only one factor to be considered under 20 C.F.R. § 404.1527. Dr.
Sawyer began treating Plaintiff for both her mental and physical impairments in August 2006,
and continued treatment through the time of the administrative hearing. See PageID 1586. As
such, Dr. Sawyer four years’ worth of observations provide a “detailed, longitudinal picture” of
Plaintiff’s medical impairments that cannot be obtained from objective medical findings alone or
from reports of consultants’ examinations. See Blakey, 581 F.3d 406. Dr. Sawyer diagnosed
Plaintiff with chronic depression, bipolar disorder, chronic pain syndrome, and fibromyalgia, and
has provided detailed treatment notes for all of those impairments.

See PageID 1587-88.

Moreover, the evidence shows that Dr. Sawyer’s opinion regarding Plaintiff’s mental RFC is

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based upon his thorough review of her mental and physical impairments, and is grounded upon
his in-depth knowledge of Plaintiff’s work, social, and medical history. Id. Other than stating
that his opinion is inconsistent with the other medical evidence of record, the ALJ made no effort
to consider Dr. Sawyer’s opinion in light of the requirements established by 20 C.F.R. §
404.1527. By so acting, the ALJ has deprived the Court of its ability to conduct a meaningful
review of her decision. See Wilson, 378 F.3d at 544.
The ALJ’s analysis in rejecting the opinions of Drs. Mathias and Moon is deficient for
the same reason. Whereas the ALJ emphasized that neither doctor opined that Plaintiff is
“permanently or totally disabled,” and bases her rejection of both opinions on this point, see
PageID 61, Social Security regulations mandate that the question of whether or not a claimant is
disabled is an administrative issue reserved solely to the province of the Commissioner. 20
C.F.R. §§ 404.1527(c)-(d). See also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.
2004) (“The determination of disability is ultimately the prerogative of the Commissioner, not
the treating physician”). Thus, even if Plaintiff’s physicians had opined that she is “permanently
or totally disabled,” such a statement would not be determinative of disability. See 20 C.F.R.
§ 404.1527(e)(1) (“A statement by a medical source that you are ‘disabled’ or ‘unable to work’
does not mean that we will find that you are disabled”); see also Soc. Sec. Ruling 96-5p, 1996
SSR LEXIS 2, at *2 (“The regulations provide that the final responsibility for deciding issues such
as these is reserved to the Commissioner”).
Although the ALJ asserts Plaintiff’s treatment notes from South Community show
Plaintiff was “doing well mentally,” see PageID 61, she cites only two out of the 1,200 pages of
medical records in this case in support of that statement. Id. (citing PageID 859, 864). While the
Court’s review of the record reveals several notes similar to the two cited by the ALJ --

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indicating that Plaintiff was, at times, making progress; or, that her depression and/or bipolar
disorder were, on a particular date, well-controlled, see PageID 864, 1180, 1200, 1202, 1323,
1332 -- the entirety of the record well supports the opinions of Drs. Mathias and Sawyer (i.e.,
that Plaintiff is significantly more limited than determined by the ALJ, and was disabled, in fact,
since her alleged onset date of disability).
For instance, one of the two records cited by the ALJ for the premise that Plaintiff was
“doing well mentally,” is a one-sentence “Group Progress Note” authored by therapist Michael
Wils on July 29, 2008. PageID 61, 864. This provides that Plaintiff was “functioning fairly well
-- mood cognitively and relating to others.” Id. Similarly, the “Group Progress Note” signed by
Mr. Wils from the two prior sessions found Plaintiff to be “functioning fairly well but somewhat
anxious and inattentive,” and recorded Plaintiff’s statement: “I feel really good.” PageID 856,
860. However, the handful of notes which reflect Plaintiff’s days of “doing well” are wholly
outnumbered by the other records indicating her recurring episodes of depression, which
continued through the date of the administrative hearing.
In June 2008, for example, one month prior to Mr. Wils’ aforementioned “positive”
reports, another therapist at South Community, David Johnson, noted Plaintiff’s increased
“urges” and “cravings” to use alcohol -- which is a form of Plaintiff’s self-medication, according
to Dr. Sawyer. See PageID 846; 1589. Mr. Wils’ own notes from June 2008 -- one month prior
to the time he documented Plaintiff to be doing well -- report Plaintiff as depressed and “recently
tearful.” PageID 842, 844. South Community therapists’ notes from May 2008 contain their
objective observations of Plaintiff as depressed, anxious, worried, and tearful, as well as
Plaintiff’s subjective reports of difficulty sleeping, increase in pain, and weight gain of more
than 20 pounds in the preceding months. PageID 827, 829, 838. Similarly, their notes through

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the date of the administrative hearing do not support the assertion that Plaintiff’s mental
impairments were under control, as they repeatedly document Plaintiff’s ongoing struggle with
depression, decreased energy and memory, increased fatigue and physical pain, and “episodic
visual hallucinations and being awakened by hearing her name.” See, e.g., PageID 1374, 1508,
1510, 1512, 1514, 1533, 1539, 1542, 1561.
The ALJ fails to identify the substantial evidence which supports her finding that
Plaintiff is “doing well mentally” and, in so doing, overlooks the entirety of the South
Community therapists’ notes (discussed supra); the opinions of Drs. Mathias and Sawyer
(same); the reports of Nurse VanAusdal, who consistently opined in 2008, 2009 and 2010 that
Plaintiff experiences marked limitations in a number of functional domains, and did not show the
level of improvement which the ALJ asserts, cf. PageID 61, 1001-02, 1033-40, 1041-49, 158384; and the outpatient records from the Miami Valley Hospital, see PageID 924-64. As such, the
ALJ’s rejection of the opinions of Drs. Sawyer, Mathias, and Moon -- on the notion of
inconsistency with the record -- is unsupported by substantial evidence. “[A] finding that a
treating source medical opinion . . . is inconsistent with the other substantial evidence in the case
record means only that the opinion is not entitled to ‘controlling weight,’ not that the opinion
should be rejected.” Blakley, 581 F.3d at 408 (quoting SSR 96-2p, 1996 SSR LEXIS 9, at *9).
In addition to the foregoing, the ALJ provided no analysis whatsoever why the opinions
of Drs. Sawyer, Mathias, and Moon were rejected in favor of the conflicting assessments of
record-reviewing, non-examining, non-treating psychologists Kevin Edwards, Ph.D. and
Douglas Pawlarczyk, Ph.D. -- whom the ALJ identifies in her opinion as “the BDD reviewing
psychologists” and discusses at Step Three, but at no point at Step Four -- which were given
significant weight. See PageID 56-57. The Sixth Circuit recently held that the ALJ may not

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criticize alleged inconsistencies between a treating opinion and other record evidence, while not
acknowledging equivalent inconsistencies in the opinions of consultative doctors. Gayheart v.
Comm'r of Soc. Sec., 710 F.3d 365, 378-79 (6th Cir. 2013). “A more rigorous scrutiny of the
treating-source opinion than the nontreating and nonexamining opinions is precisely the inverse
of the analysis that the regulation [20 C.F.R. § 404.1527] requires.” Id. (citations omitted). Here,
the ALJ did just that, and misapplied Social Security regulations. The ALJ’s failure to follow
agency rules and regulations “denotes a lack of substantial evidence.” Blakley, 581 F.3d at 407.
Accordingly, and based upon the foregoing, the Court finds the ALJ’s decision -- to not
defer to the opinions of Drs. Sawyer, Mathias, and Moon without conducting a proper analysis -to be unsupported by substantial evidence. Therefore, the ALJ’s decision should be reversed.
See id.7
D. Remand for an Immediate Award of Benefits is Appropriate
Recognizing that the ALJ’s non-disability determination is unsupported by substantial
evidence, the Court must next determine whether remanding for further administrative
proceedings is appropriate.

The Court has the authority to affirm, modify, or reverse the

Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C. §
405(g); Melkonyan, 501 U.S. at 100. The Court may award benefits where the proof of disability
is strong and opposing evidence is lacking in substance, so that remand would merely involve
the presentation of cumulative evidence, or where the proof of disability is overwhelming. See
Faucher v. Sec’y of H.H.S., 17 F. 3d 171, 176 (6th Cir 1994); Lowery v. Comm’r of Soc. Sec.,
No. 3:10-cv-427, 2011 U.S. Dist. LEXIS 154323, at *31-32 (S.D. Ohio Dec. 8, 2011) (Newman,
7

In light of this finding, it unnecessary to address Plaintiff's remaining alleged error -that the ALJ erred in assessing her credibility. See doc. 9 at PageID 1621-22.

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M.J.), adopted by 2012 U.S. Dist. LEXIS 40333 (S.D. Ohio Mar. 23, 2012) (Rice, J.); Valentine
v. Astrue, No. 3:10-cv-470, 2011 U.S. Dist. LEXIS 154178, at *29-30 (S.D. Ohio Dec. 7, 2011)
(Newman, M.J.), adopted by 2012 U.S. Dist. LEXIS 36736 (S.D. Ohio Mar. 19, 2012) (Rice, J.).
Such is the case here. The proof of disability -- including the opinions of Drs. Sawyer,
Mathias, and Moon, and the lengthy record underlying their opinions as to the severity of
Plaintiff’s mental impairments -- is great, and remand will serve no purpose other than delay.
See Faucher, 17 F.3d at 173-76. Therefore, all substantial factual issues have been resolved, and
the record reflects that Plaintiff is disabled, and has been since November 4, 2007 -- her alleged
onset date of disability. Accordingly, the Court recommends remanding for an immediate award
of benefits.
IV. RECOMMENDATION
For the foregoing reasons, the Court RECOMMENDS that:
1.

The ALJ’s non-disability finding be found UNSUPPORTED BY
SUBSTANTIAL EVIDENCE, and REVERSED;

2.

This case be REMANDED TO THE COMMISSIONER UNDER THE
FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR AN IMMEDIATE
AWARD OF BENEFITS, consistent with this Report and
Recommendation and the Social Security Act;

3.

This case be CLOSED.

June 25, 2013

s/Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See United States v.
Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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