Howell v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Danny R Howell - IT IS THEREFORE RECOMMENDED THAT: 1. The ALJs non-disability finding be vacated; 2. No finding be made as to whether Plaintiff was under a disability within the meaning of the So cial Security Act; 3. This matter be REMANDED to the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g) for further proceedings consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and 4. The case be TERMINATED on the docket of this Court. Objections to R&R due by 12/27/2013. Signed by Magistrate Judge Sharon L Ovington on 12/10/13. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DANNY R. HOWELL,

:

Plaintiff,

:
Case No. 3:13cv00005

vs.

:

CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Danny R. Howell sought financial assistance from the Social Security

Administration by applying for Disability Insurance Benefits (“DIB”) in January 2009,
alleging disability since August 3, 2005. (PageID## 162-66). He claims disability due to
“[c]ontusion of back, degenerative disc disease, anxiety, [and] depression.” (PageID#
207).
After various administrative proceedings, Administrative Law Judge (“ALJ”)
Amelia G. Lombardo denied Plaintiff’s DIB application based on her conclusion that
Plaintiff’s impairments did not constitute a “disability” within the meaning of the Social
Security Act. (PageID## 50-61). The ALJ’s nondisability determination and the

1

Attached hereto is NOTICE to the parties regarding objections to this Report and Recommendations.

resulting denial of benefits later became the final decision of the Social Security
Administration. Such final decisions are subject to judicial review, see 42 U.S.C. §
405(g), which Plaintiff is now due.
This case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #10), Plaintiff’s Reply (Doc. #12),
the administrative record (Doc. # 6), and the record as a whole.
II.

Background
A.

Plaintiff’s Vocational Profile and Testimony

Plaintiff was 44 years old on his alleged disability onset date, which defined him
as a “younger individual” for purposes of resolving his DIB claim. See 20 C.F.R. §
404.1563(c); see also PageID# 60. Plaintiff has a high school education. (Id.). He
previously worked as a vending machine attendant. (PageID# 91).
Plaintiff testified he is 5' 6" tall and weighs approximately 206 pounds. (PageID#
74). He used to weigh around 230 pounds, however, since he found out he has diabetes
he testified “I’ve been kind of dieting a little bit and kind of watch my weight and it’s
went down some.” (Id.). Plaintiff lives in a one-story house with his brother. (PageID#
75). He stated he has a driver’s license, but does not drive very often. (Id.). His son
drove him to the hearing. (Id.). Plaintiff testified that he went to school until ninth grade,
got married early, had a child, and joined the Army. (PageID# 76).
Plaintiff testified he was working for AVI Food Systems when he was injured on
the job. (PageID# 78). Plaintiff drove a cart and stocked soda cans in vending machines.
2

(Id.). He explained the accident as follows:
I fell backwards, mid back and we had some gigantic sawhorses, metal sawhorses
and when I fell back, I hit my back center wise, slid down the legs of it and my
bottom hit the concrete and when it did it jammed all that up in there and fractured
a SI facet joint and couple bad discs, herniated disc.
(PageID# 79). Plaintiff has primarily been treated with pain medication and injections.
(PageID# 80). He stated he suffers from chronic pain “all the time” and that pain
medications only help minimally. (Id.). Plaintiff testified he has bronchitis with
emphysema, and can only walk “[a]bout a block and a half or so before [he] get[s] tired
and [his] knees give out.” (Id.). He stated he can stand for about 30 to 45 minutes but
needs to keep changing positions or sit down. He is unable to sleep in a bed. He sleeps in
a recliner “with tons of pillows on it to cushion it.” (PageID# 81). He can only lift basic
things around the house, such as a vacuum or a dish. (Id.).
Plaintiff also suffers from anxiety and panic attacks. (Id.). He sees a psychiatrist
approximately once every three months, who prescribes him with Xanax for his anxiety
and Cymbalta for his depression. (PageID# 82). Plaintiff stated he has “my good days
and bad days.” (Id.). He no longer has a girlfriend. His brother mows the lawn but
Plaintiff stated “I’ll do most of the housework, sweeping, stuff like that. Fix a little
dinner. . . .” (PageID# 82). He testified his brother is “slow. He’s not retarded or
nothing. He’s just slow and he has a little bit of nerve damage in his legs.” (Id.)
Plaintiff stated he does the laundry and cares for a dog and a cat that his exgirlfriend left when she moved out. (PageID# 84). Plaintiff stated he does not smoke,

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but may have four drinks a month or so. (Id.). He described a typical days as follows:
[U]sually first thing I do when I do get up is take care of the animals, let Mitch go
outside. Make sure they got food and water. And then I might fix me a cup, a pot
of coffee, watch TV and videos and it’s summertime, you get out there in the yard
and sit, watch the traffic go by. What little bit of housework needs done, you
know, I try to do a little bit every day so it don’t pile up.
(PageID# 85). Plaintiff also does the grocery shopping for himself and his brother. He
stated he did not have the mental health problems he currently has when he was
previously working. (PageID# 85). He attributed this to “stress from not having no
money and no way to get my other medical things I needed done, treated, and having to
borrow money from people and my landlord and family. You know, you go five years
with a couple hundred here. I still owe my landlord like $4,000 back pay.” (PageID#
85).
Plaintiff also stated he has problems with posttraumatic stress due to thinking
about the stress of his previous job. (PageID# 88). He stated he has bad dreams as a
result. (Id.). Plaintiff testified he wishes he was dead “a bunch of times.” (Id.). He
stated “[t]here’s times I have wanted to kill myself but my religion, I believe if you take
your life, you’re going to go to hell.” (PageID# 89). Plaintiff has trouble with memory
and concentration. He gets confused when filling out papers. (Id.). He also has some
swelling in his feet and ankles which he attributes to congestive heart failure. (Id.).
B.

Vocational Expert Testimony

A Vocational Expert (VE) also testified at the administrative hearing. (PageID##
90-99). ALJ Lombardo proposed a series of hypotheticals regarding Plaintiff’s residual
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functional capacity (“RFC”) to the VE. (PageID## 90-92). The VE was asked to
consider a person of Plaintiff’s age, education, and work history, who can only perform
work at the light exertional level; can only occasionally stoop and crouch; can change
positions between sitting and standing every 30 minutes; and is limited to work that is
low stress, which is no assembly line production quotas and not fast paced. (PageID#
91). Considering this hypothetical, the VE testified such an individual could perform
Plaintiff’s previous job as a vending machine attendant. (Id.). The VE testified that if
such an individual was also limited to only minimal contact with the general public,
supervisors, and co-workers, the hypothetical person would not be able to perform
Plaintiff’s previous job. (Id.). The VE, however, testified that such a person could
nevertheless perform representative jobs at the light exertional level such as a routing
clerk or laundry folder (with approximately 14,000 jobs in the regional economy), as well
as 2,600 sedentary jobs in the regional economy, such as automatic grinding machine
operator and clip loading machine feeder. (PageID# 92).
Plaintiff’s counsel asked the VE to also consider a person with the same physical
limitations described previously, but who also is moderately limited in his mental ability
to do the following: work consistently and without excessive breaks; maintain attention
and concentration; handle frustration; deal with work demands for meeting a schedule and
deadlines; deal with multi-tasking and handle pressures for speed and productivity; relate
to others; handle criticism; control emotions; and deal with interpersonal problems at
work. (PageID# 93). Plaintiff’s counsel asked the VE to “assume that moderate is
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defined as occasional or up to one third of the day.” (Id.). Considering this hypothetical,
the VE testified such an individual would not be capable of gainful employment. (Id.).
The VE further testified that his testimony is consistent with the Dictionary of
Occupational Titles (“DOT”). (PageID# 92).
C.

Relevant Medical Opinions
1.

Physical Impairments

In August 2005, Plaintiff was injured at work when he fell backward and hit his
back on a sawhorse. (PageID# 399). A lumbar spine MRI taken in September 2005
indicated diffuse degenerative disc space narrowing, mild disc bulging with greatest
involving at the L5-S1 level, no evidence of significant encroachment of the thecal sac or
evidence of spinal stenosis. (PageID# 434). Worker’s compensation physician George
Cochran, M.D., noted that Plaintiff has a L4-5 bulging disk “which seems to be more
symptomatic than the MRI has disclosed”; his straight leg raising is positive bilaterally at
80 degrees on the right with pain across his lower back and definitely positive on the left
at 70 degrees; there is a marked spasm of the paravertebral muscles and flexion; extension
and twisting cause marked pain; walks with an antalgic gait; and gets on and off the table
with slight difficulty. (PageID# 431).
During a follow-up visit with Dr. Cochran, it was noted that Plaintiff stated “his
pain level is considerably improved since he has been doing the PT. He has
approximately five or six session remaining. A report from the physical therapist shows
marked improvement.” (PageID# 420).
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In April 2006, Plaintiff was examined by William Smith, M.D., in connection with
his worker’s compensation claim. (PageID# 436-49). Dr. Smith noted that he reviewed
the MRI and “it shows a tiny midline bulging disc at L5-S1. It also shows a defect in the
lamina at L5-S1 on the left side, which appears to be a defect in a secondary osification
center, but could represent a fracture. Also the facet at L5-S1 on the left is more irregular
than the one on the right.” (PageID# 437-38). Dr. Smith believed that Plaintiff had not
yet reached maximum medical improvement, but believes he could still perform at least
sedentary work at that time (and perhaps also light work). (PageID# 438).
In May 2006, Plaintiff’s MRI and EMG studies indicated normal results.
(PageID# 514-15). In June 2006, Plaintiff insisted that he needs four Vicodins per day,
and commented that “he is taking care of mother and father and doing quite a bit of
driving to doctor’s offices for them.” (PageID# 580). In July 2006, it was noted that
Plaintiff has “a lot of pain behavior incidental to changing positions today. He does
report having moved some furniture and significantly aggravated everything over the last
week. He is tender in the lumbar left SI area. He can sit on the exam table. Straight leg
raise test aggravates his back. Deep tendon reflexes are 2+ in knees and ankles.”
(PageID# 578).
In November and December 2006, Plaintiff had an epidural which provided some
temporary pain relief. (PageID# 474). He rated the pain at 1 out of 10 (from the original
3 out of 10) and it was noted “he does feel that he has had a 60 to 70% improvement in
his symptoms overall.” (PageID# 474).
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During a follow-up visit with Dr. Goodrich in December 2006, it was reported that
“[b]ased upon today’s examination, it is certainly within the realm of possibility that
Danny will be able to return to his regular job [on 12/18/06].” (PageID# 565). In a letter
dated December 15, 2006 to Dr. Goodrich, Plaintiff’s physical therapist stated that he did
“not see any problem with Danny returning to work at full duty as of the current plan,
which would be December 18, 2006.” (PageID# 655-56).
In February 2007, Dr. Goodrich reported that Plaintiff, during a follow-up visit,
was alert, in no acute distress, had no pain behavior, no significant tenderness on
palpation of the lumbar area, and he changes positions without difficulty. (PageID# 558).
Dr. Goodrich also reported that, prior to attending his appointment that day, Plaintiff’s car
was stuck in snow but that he got out of the vehicle and “actually pushed his mustang on
to the point that it was able to clear the driveway. He did that without suffering any
negative consequences on his back.” (Id.). Dr. Goodrich opined that “I think this is a
good indicator of significant improvement over the time I began seeing him and
somewhat supportive of the fact that he is at this time at maximum medical improvement
given that the back was not thrown into relapse by such an event.” (Id.).
An MRI from July 2007 showed a small disc protrusion at L5-S1 abutting the left
S1 nerve root with mild to moderate bilateral foraminal narrowing and a disc protrusion
and annular fissure at L4-L5 resulting in contact with the left L4 nerve root. (PageID#
520-21).
In October 2007, Dr. Goodrich noted that “[d]uring the last month, I have notified
8

Danny in writing that I cannot continue to be his physician of record because of the level
of pain medication that is being prescribed right now.” (PageID# 714). Dr. Goodrich
also noted that “as a prescription medical pain management treating physician, I feel that
the medication that we are requiring right now is over the top in terms of my expertise.”
(Id.).
In 2007, consultative examiner William Padamadan, M.D., opined that “[b]ased
upon this clinical evaluation and in the absence of objective findings of any functional
impairment, I do not see any indication for limitation of physical activities.” (PageID#
688).
In November 2007, state agency reviewing physician, Elizabeth Das, M.D., opined
that Plaintiff was mostly credible regarding his ability to function. (PageID# 812). She
concluded that Plaintiff could do the following: occasionally lift 20 pounds; frequently
lift 10 pounds; stand and/or walk for 6 hours in an 8-hour workday; sit for a total of about
6 hours in an 8-hour workday; push and/or pull without limitation; occasionally climb
ramp/stairs; never climb ladders, ropes, or scaffolds; occasionally kneel, crouch, and
crawl. (PageID## 807-15).
During 2007 and 2008, Plaintiff continued to be treated with physical therapy, a
transcutaneous electrical nerve stimulation (TENS) unit, pain medication, and epidural
injections. (PageID## 816-25, 830-32, 837, 1178, 1202).
In January 2008, a thoracic spine MRI showed degenerative changes at the mid
dorsal spine with hypertrophic response and disc bulging and protrusion, however, no
9

associated foraminal stenosis or spinal canal stenosis was present. (PageID# 976). In
June 2008, worker’s compensation examiner Pietro Seni, M.D., concluded that Plaintiff
could not return to his former position, even with restrictions, but “most likely can do
sedentary work.” (PageID# 1054).
In May 2009, during a consultative examination, Judith Brown, M.D., noted that
Plaintiff refused to perform all of the range of motion tests. (PageID# 1010). Dr. Brown
stated that Plaintiff’s “ability to perform work-related activities such as bending,
stooping, lifting, walking, crawling, squatting, carrying and traveling as well as pushing
and pulling heavy objects appears to be at least mildly impaired by the findings noted.”
(PageID# 1014). In May 2009, another state agency reviewing physician, Anton
Freihofner, M.D., opined that Plaintiff could perform light work. (PageID# 1118-1124).
In January 2010, consultative examiner Richard Ward, M.D., examined Plaintiff
and opined that he could stand and walk less than one hour a day and sit up to 3 hours per
day. (PageID# 1302). He limited Plaintiff to only sedentary work capabilities.
(PageID# 1302-03). Dr. Ward believed Plaintiff was not capable of returning to
sustained gainful employment. (PageID# 1301).
In May 2010, worker’s compensation examiner James Lutz, M.D., examined
Plaintiff and, also relying on the opinion of Dr. Ward, opined that Plaintiff is disabled.
(PageID# 1381). A September 2010 MRI indicated spondylolysis at L5 with slight
retrolisthesis at L4-L5, as well as mild disc and facet disease at L3 through S1 with no
stenosis or definite root impingement seen at any level. (PageID# 1462).
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2.

Psychological Impairments

Plaintiff reported symptoms of depression and anxiety in May 2007. (PageID#
489). In October 2007, consultative examiner, Lee Howard, Ph.D., diagnosed Plaintiff
with mild depressive disorder. (PageID# 683). On examination, Plaintiff had a normal
mood, affect and social presentation. (PageID# 683). He reported having low energy
and lack of sleep; was goal directed and coherent; and his associations were normal.
(PageID# 681). He could perform simple tasks, relate to others without difficulty,
perform in a low to moderate stress work environment, and manage his finances.
(PageID# 684).
In February 2009, consultative examiner Giovanni Bonds, Ph.D., concluded that
Plaintiff was not able to return to his former job. (PageID# 389). He found that Plaintiff
was moderately limited in his ability to work consistently and without excessive breaks,
maintain attention and concentration, handle frustration, deal with work-related schedules
and deadlines, multi-task, and handle pressures for speed and productivity. (Id.).
Throughout 2009 and 2010 Plaintiff treated with Linda Griffith, M.D., of
Consolidated Care, Inc. Dr. Griffith noted Plaintiff had abnormal mental status
examination results of visible pain behavior, depressed mood, constricted and tearful
affect, and feelings of helplessness, hopelessness, and worthlessness express through a
constant desire to die without plan for suicide. (PageID## 500, 502, 854, 856, 860, 862,
866, 872, 877, 915, 1248, 1297, 1361, 1363, 1367, 1372, 1441). Dr. Griffith opined that
due to the Plaintiff’s major depressive disorder, generalized anxiety disorder, and post11

traumatic stress disorder combined with the synergistic depressing effects of his chronic
pain, he was unable to concentrate, cope with others, or persist at an adequate level to be
employed. (PageID## 854-55, 915-16, 1297, 1362).
In April 2009, state agency reviewing psychologist Roseann Umana, Ph.D., opined
that Plaintiff was moderately limited in each functional category. (PageID# 992). Dr.
Umana’s opinion was affirmed by reviewing psychologist Frank Orosz, Ph.D. (PageID#
1296).
In January 2010, Lee Howard, Ph.D., conducted a comprehensive psychological
examination of Plaintiff. Testing revealed that Plaintiff’s capacity to work was below any
employable capacity. (PageID## 1317-20). Dr. Howard agreed with the opinions of Dr.
Griffith regarding her findings as to Plaintiff’s functional limitations. (PageID# 1320).
In November 2010, Dr. Griffith opined that Plaintiff had moderate limitations in social
interaction, extreme limitations in sustained concentration, and marked to extreme
limitations in adaptation as a result of his impairments. (PageID## 1412-14).
In March 2011, Cara Perez, M.D., a new doctor at Consolidated Care, Inc., noted
that “current meds are not helping as well as [Plaintiff] would like them to. Says
‘everything was fine before you came into the picture. They used to give me more of
those little Morphines.’” (PageID# 1446).
III.

Administrative Review
A.

“Disability” Defined

The Social Security Administration provides DIB to individuals who are under a
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“disability,” among other eligibility requirements. Bowen v. City of New York, 476 U.S.
467, 470 (1986); see 42 U.S.C. § 423(a)(1)(D). The term “disability” – as defined by the
Social Security Act – has specialized meaning of limited scope. It encompasses only
those who suffer from a medically determinable physical or mental impairment severe
enough to prevent them from engaging in substantial gainful activity. See 42 U.S.C. §
423(d)(1)(A); see also Bowen, 476 U.S. at 469-70. A DIB applicant bears the ultimate
burden of establishing that he or she is under a “disability.” Key v. Callahan, 109 F.3d
270, 274 (6th Cir. 1997); see Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680,
683 (6th Cir. 1992); see also Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
The term “disability” – as defined by the Social Security Act – carries a
specialized meaning of limited scope. Narrowed to its statutory meaning, a “disability”
includes only physical or mental impairments that are “medically determinable” and
severe enough to prevent the claimant (1) from performing his or her past job, and (2)
from engaging in “substantial gainful activity” that is available in the regional or national
economies. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).
B.

Social Security Regulations

Administrative regulations require ALJs to resolve a disability claim through a
five-Step sequential evaluation of the evidence. See PageID## 50-52; see also 20 C.F.R.
§ 404.1520(a)(4). Although a dispositive finding at any Step terminates the ALJ’s
review, see also Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete
sequential review answers five questions:
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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 residual functional capacity, can he
perform his past relevant work?

5.

Considering the claimant’s age, education, past work experience, and
residual functional capacity (RFC), can he or she perform other work
available in the national economy?

See 20 C.F.R. § 404.1520(a)(4); see also Colvin, 475 F.3d at 730; Foster v. Halter, 279
F.3d 348, 354 (6th Cir. 2001).
C.

ALJ Lombardo’s Decision

Plaintiff last met the insured status requirements of the Social Security Act through
December 31, 2011. (PageID# 52).
At Step 2 of the sequential evaluation, the ALJ concluded that Plaintiff has the
severe impairments of osteoarthritis and degenerative disc disease of the lumbar spine;
obesity; depression; and anxiety. (Id.).
The ALJ concluded at Step 3 that Plaintiff does not have an impairment or
combination of impairments that meet or equal one of the Listings. (Id.).
At Step 4, the ALJ evaluated Plaintiff’s RFC and found that he could perform light
work subject to the following limitations: only unskilled work; low stress work defined as
no assembly line production quotas and work that is not fast paced; occasional stooping

14

and crouching; occasional stairs; no climbing of ladders, ropes, or scaffolds; minimal
contact with coworkers, supervisors, and the general public. (PageID# 55).
The ALJ concluded at Step 4 that Plaintiff was unable to perform his past relevant
work. (PageID# 59).
At Step 5, based on the testimony of the VE, the ALJ concluded that – considering
Plaintiff’s age, education, work experience, and RFC – he is capable of performing a
significant number of jobs in the national economy. (PageID# 60).
The ALJ’s findings throughout her sequential evaluation led her to ultimately
conclude that Plaintiff was not under a disability, and was therefore not eligible for DIB.
(PageID# 61).
IV.

Judicial Review
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ

applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999). Instead, the ALJ’s factual findings are upheld if the substantial-evidence
standard is met – that is, “if a ‘reasonable mind might accept the relevant evidence as
15

adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r
of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at
241.
The second line of judicial inquiry, reviewing for correctness the ALJ’s legal
criteria, may result in reversal even if the record contains substantial evidence supporting
the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir.
2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial evidence, ‘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.’” Rabbers, 582 F.3d at 651 (quoting in part Bowen, 478
F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir.
2004)).
V.

Discussion
Plaintiff argues the ALJ failed to establish the first part of the controlling weight

test because she never determined whether the opinions of his treating psychiatrist, Dr.
Griffith, were supported by clinical diagnostic techniques. (Doc. #7, PageID## 1473-76).
Plaintiff also contends that even if it was appropriate for the ALJ not to provide Dr.
Griffith’s opinion controlling weight, her decision should be reversed because she failed
to provide good reasons for assigning Dr. Griffith’s opinions little weight. (Doc. # 7,
PageID## 1476-79). Plaintiff requests the Court reverse the ALJ’s decision and award
16

payment of benefits as of the alleged disability onset date. (Doc. #7, PageID# 1484).
Defendant argues the ALJ properly weighed Dr. Griffith’s opinion and her
decision is supported by substantial evidence. (Doc. #10, PageID# 1500). Defendant
also contends the ALJ properly weighed the opinions of the reviewing and examining
physicians, while also considering the objective evidence, other opinion evidence, and
Plaintiff’s own statements. (Doc. #10, PageID# 1509). Defendant argues substantial
evidence supports the ALJ’s decision and should be affirmed. (Id.).
Social Security Regulations recognize several different categories of medical
sources: treating physicians and psychologists, nontreating yet examining physicians and
psychologists, and nontreating yet record-reviewing physicians and psychologists.
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013).
As a general matter, an opinion from a medical source who has examined a
claimant is given more weight than that from a source who has not performed an
examination (a ‘nonexamining source’), and an opinion from a medical source
who regularly treats the claimant (a ‘treating source’) is afforded more weight than
that from a source who has examined the claimant but does not have an ongoing
treatment relationship (a ‘nontreating source’). In other words, “[t]he regulations
provide progressively more rigorous tests for weighing opinions as the ties
between the source of the opinion and the individual become weaker.” Soc. Sec.
Rul. No. 96-6p, 1996 WL 374180, at * 2 (Soc. Sec. Admin. July 2, 1996).
Gayheart, 710 F.3d at 375 (citing 20 C.F.R. §§ 404.1502, 404.1527(c)(1)).
A treating source’s opinion may be given controlling weight under the treatingphysician rule only if it is both well supported by medically acceptable data and not
inconsistent with other substantial evidence of record. Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)). “If the
17

Commissioner does not give a treating-source opinion controlling weight, then the
opinion is weighed based on the length, frequency, nature, and extent of the treatment
relationship, as well as 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.”
Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)-(6)).
Unlike treating physicians, “opinions from nontreating and nonexamining sources
are never assessed for ‘controlling weight.’ The Commissioner instead weighs these
opinions based on the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion is not deemed
controlling. Other facts ‘which tend to support or contradict the opinion’ may be
considered in assessing any type of medical opinion.” Id. (citing 20 C.F.R. §
404.1527(c)(6)).
In considering Dr. Griffith’s opinion, the ALJ concluded that the opinion was not
entitled to controlling weight and only provided little deferential weight. (PageID# 59).
Specifically, the ALJ stated:
Dr. Linda Griffith, a psychiatrist, has opined that the claimant is disabled and
unable to work in February 2010 (Exhibit 26F). A month later, she felt he might
benefit from training for a non-physically laborious job (Exhibit 28F). She has
found marked and extreme limitations in multiple areas (Exhibit 55F). However,
her opinion from the discussed exhibits was based in large part on the claimant’s
pain complaints (Exhibit 38F), which as discussed, were very exaggerated. The
claimant repeatedly was reported as embellishing his symptoms. Furthermore, Dr.
Griffith is a psychiatrist and is not qualified to perform assessments on the limiting
effects of his physical impairments. In addition, her opinion is inconsistent with
the record as a whole. Therefore, it will be given no controlling and little
deferential weight.
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(Id.). Plaintiff contends the ALJ “failed to establish the first part of the controlling weight
test because she never determined whether or not Dr. Griffith’s opinion was supported by
clinical diagnostic techniques.” (Doc. #7, PageID# 1473). Plaintiff argues the “ALJ did
not once mention any of the clinical examination results of any of Mr. Howell’s
psychiatric examinations anywhere in the decision.” (Id.). Plaintiff contends “Dr.
Griffith’s opinion was supported by clinical diagnostic techniques and was consistent
with substantial evidence of record.” (Doc. #7, PageID# 1474).
A review of the record indicates Plaintiff began obtaining mental health treatment
from Dr. Griffith in May 2007. (PageID## 489, 854, 877). As Plaintiff correctly notes,
“[i]n every examination by Dr. Griffith Mr. Howell presented with a depressed and
anxious mood and an abnormal affect, mostly constricted and tearful but also sometimes
flat or irritable. He also was always noted with feelings of worthlessness, helplessness,
hopelessness and expressed a ‘death wish’ without a plan.” (Doc. #7, PageID# 1474)
(citing to PageID## 500, 502, 854, 856, 860, 862, 866, 872, 877, 915, 1246, 1248, 1297,
1361, 1363, 1365, 1367, 1372, 1441). When mental work abilities are at issue, such
symptoms constitute supporting medical or objective evidence. As the United States
Court of Appeals for the Sixth Circuit has explained:
In general, mental disorders cannot be ascertained and verified as are
most physical illnesses, for the mind cannot be probed by mechanical
devices ... in order to obtain objective clinical manifestations of mental
illness....
[W]hen mental illness is the basis of a disability claim, clinical
and laboratory data may consist of the diagnosis and observations of
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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) (quoting Poulin v. Bowen, 817
F.2d 865, 873-74 (D.C. Cir. 1987)(other citation omitted)). The ALJ, however, did not
discuss these observations and failed to properly evaluate whether Dr. Griffith’s opinion
was supported by clinical diagnostic techniques.
Instead, in determining Dr. Griffith’s opinion to be unsupported by the evidence, it
appears the ALJ relied significantly upon an “invalid” test result from the multi part
Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test conducted by consultative
examiner, Dr. Bonds. Yet even this conclusion is not supported by substantial evidence.
For example, the ALJ stated these test scores were “determined to be invalid” by Dr.
Bonds based on Plaintiff “exaggerating his symptoms and problems.” (PageID# 56). A
review of the record, however, indicates such a finding is simply not correct. Dr. Bonds
did not invalidate the test scores, as the ALJ stated and relied upon. Dr. Bonds did note
that Plaintiff “responded to the test by exaggerating his problems and symptoms possibly
as a plea for help,” however, he did not deem the scores to be invalid. Rather, Dr. Bonds
specifically took Plaintiff’s exaggerations on the test – his “response bias” – into account
and noted that it was reflected in the validity scales. (Id.). He specifically stated the “test
results are interpreted with this response bias in mind.” (PageID# 388). The ALJ’s
finding that such scores were somehow “invalidated” is not supported by the record, and
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reliance upon such an incorrect conclusion was improper. Moreover, the fact Plaintiff
may have exaggerated symptoms on the MMPI-2 does not – despite the ALJ’s apparent
belief otherwise – conclusively establish that he also exaggerated all or some of the
symptoms he reported to his treating psychiatrist, Dr. Griffith. For example, it was
reported that Plaintiff’s “MMPI-2 [results] indicate[] exaggerated reporting of
psychological problems possibly in an attempt to plea for more help from [the Bureau of
Workers’ Compensation].” (PageID# 389)(emphasis added). Thus, even if Plaintiff
exaggerated his symptoms during the MMPI-2 test as a plea for more help from the
BWC, it is not clear – absent further discussion from the ALJ – how the ALJ could
properly infer that all symptoms reported by Plaintiff to Dr. Griffith, spanning the many
years of treatment with her, were also likewise exaggerated.
The Court also notes that, in addition to failing to properly evaluate Dr. Griffith’s
opinions for controlling weight, the reasons provided by the ALJ for assigning this
psychiatrist’s opinion little weight are not supported by substantial evidence. Little
weight was given to Dr. Griffith’s opinion because the ALJ concluded it was simply
based on Plaintiff’s complaints of physical impairments, Dr. Griffith was not qualified to
assess such physical complaints, and Dr. Griffith’s opinion was inconsistent with the
record as a whole. (PageID# 59). As the Court previously noted, however, Dr. Griffith
did not merely rely upon Plaintiff’s subjective complaints regarding physical
impairments, but considered Plaintiff’s psychological symptoms, signs, and test results in
concluding he is disabled. A careful reading of her opinion clearly indicates such a point.
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(PageID# 854)(“I can only address his psychiatric symptoms . . . . [I]t is my professional
opinion that Mr. Howell’s current Major Depressive Disorder, chronic, severe, without
psychotic features; Posttraumatic Stress Disorder and Generalized Anxiety Disorder
continue to render him completely unable to work at any level.”). The ALJ’s finding to
the contrary is incorrect. And while the ALJ concluded that Dr. Griffith’s opinion “is
inconsistent with the record as a whole,” she failed to provide further discussion or
examples of such inconsistencies. (PageID# 59). Such a summary dismissal of Dr.
Griffith’s opinion fails to meet the requirement that the ALJ “give good reasons” for not
giving weight to a treating physician. See Wilson, 373 F.3d at 544-45.
Accordingly, for all the above reasons, Plaintiff’s Statement of Errors is well
taken.
VI.

Remand is Warranted
If the ALJ failed to apply the correct legal standards or his factual conclusions are

not supported by substantial evidence, the Court must decide whether to remand the case
for rehearing or to reverse and order an award of benefits. Under Sentence Four of 42
U.S.C. § 405(g), the Court has authority to affirm, modify, or reverse the Commissioner's
decision “with or without remanding the cause for rehearing.” Melkonyan v. Sullivan,
501 U.S. 89, 99 (1991). Remand is appropriate if the Commissioner applied an erroneous
principle of law, failed to consider certain evidence, failed to consider the combined
effect of impairments, or failed to make a credibility finding. Faucher v. Sec’y of
Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
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A judicial award of benefits is unwarranted in the present case, because the
evidence of disability is not overwhelming, and because the evidence of a disability is not
strong while contrary evidence is weak. See id. However, Plaintiff is entitled to an Order
remanding this case to the Social Security Administration pursuant to Sentence Four of §
405(g) due to problems discussed supra.
On remand, the ALJ should be directed to evaluate the evidence of record,
including the medical source opinions, under the applicable legal criteria mandated by the
Commissioner’s Regulation and Rulings and by case law; and to evaluate Plaintiff’s
disability claim under the required five-step sequential analysis to determine anew whether
Plaintiff was under a disability and whether his application for DIB should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The ALJ’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff was under a “disability”
within the meaning of the Social Security Act;

3.

This matter be REMANDED to the Social Security Administration
pursuant to Sentence Four of 42 U.S.C. § 405(g) for further
proceedings consistent with this Report and Recommendations, and
any decision adopting this Report and Recommendations; and

4.

The case be TERMINATED on the docket of this Court.

December 10, 2013

s/ Sharon L. Ovington
Sharon L. Ovington
Chief 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)(C), (D), (E), or (F). 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 Recommendation is
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 Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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