Slaton v. Commissioner Social Security

Filing 13

REPORT AND RECOMMENDATIONS: 1) The Commissioner's non-disability finding be vacated; 2) No finding be made as to whether Plaintiff Michael S. Slaton was under a "disability"; 3) This matter be remanded to the Social Security Administra tion for further consideration 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 2/22/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 2/5/16. (slo1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICHAEL SLATON,

:

Plaintiff,

:
Case No. 3:14cv00341

vs.

:

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

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Michael Slaton brings this case challenging the Social Security

Administration’s denial of his applications for Disability Insurance Benefits and
Supplemental Security Income. He asserted during his administrative proceedings that he
has been under a benefits-qualifying disability – starting on June 6, 2009 – due to injuries
he suffered on that day when a car struck him. He was a pedestrian at the time the car
struck him. He also asserted that his disabilities included bipolar disorder and “mental
impairments.” (Doc. #5, PageID #344).
Administrative Law Judge (ALJ) Amelia G. Lombardo concluded that despite

1

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

Plaintiff’s impairments, he could perform light work with certain restrictions. This and
other findings led ALJ Lombardo to conclude that Plaintiff could perform jobs that exist in
the national economy and, as a result, was not under a benefits-qualifying disability.
The case is presently before the Court upon Plaintiff’s Statement of Errors (Doc.
#7), the Commissioner’s Memorandum in Opposition (Doc. #11), Plaintiff’s Reply (Doc.
#12), the administrative record (Docs. #5), and the record as a whole.
Plaintiff seeks an Order reversing the ALJ’s decision and remanding the matter for
payment of benefits. The Commissioner asks the Court to affirm the ALJ’s decision.
II.

Background
A.

Plaintiff’s Vocational Background and Testimony

Plaintiff was 39 years old when ALJ Lombardo issued her decision, placing him in
the category of a “younger person” for purposes of resolving his claims for Disability
Insurance Benefits and Supplemental Security Income. See 20 C.F.R. §§ 404.1563(c);
416.963(c).2 He has a high-school education. He worked in the past as a well driller and a
welder.
During ALJ Lombardo’s hearing, Plaintiff testified that he is unable to work due
problems he’s had since the car accident, such as comprehension issues, difficulty with his
verbal skills, and falling asleep throughout the day. (Doc. #5, PageID #99). He has
problems with his back and has four fractures in his neck. He stated, “I had a brain
2

The remaining citations will identify the pertinent Disability Insurance Benefit regulations with
full knowledge of the corresponding Supplemental Security Income regulations.

2

concussion, and I had bleeding on the brain.” Id. at 100. And he noted he was “very
bipolar.” Id. He was not drinking, presumably alcohol, at the time of the ALJ’s hearing.
Id. at 100.
During a typical day, Plaintiff sits around the house and tries to do what his parents
ask him of him, such as helping his mother with laundry. Id. at 101-02. He can
concentrate on reading for three to four minutes but then needs to start over. Although he
tries to read, he cannot read very much. Id. at 103. His mother is in charge of his
medications. He has not dispensed his own medications since he was involved in the car
accident. Id.
Plaintiff testified that since the car accident, he falls asleep approximately 10 times
a day for 15 to 20 minutes each time. Id. at 105-06. His parents help pick out his clothes
for him, and he did not know if he was able to dress without his parents’ assistance. Id. at
106.
B.

Dr. Flexman

In October 2009, psychologist Dr. Flexman consultatively evaluated Plaintiff.
(Doc. #5, PageID #722-26). Plaintiff reported to Dr. Flexman that he has been diagnosed
with bipolar disorder and has been depressed for years. He finds it hard to maintain
energy, and he worries “about things.” Id. at 722. Dr. Flexman reported, “The Bipolar
Questionnaire was negative,” without further explanation. Id.
Plaintiff’s affect and mood at the time of Dr. Flexman’s evaluation appeared as

3

follows: “Affect was appropriate and lability was not present. Attitude was within normal
limits. He reports emotionally that his mood is all right; he tries to stay okay, one day at a
time. He reports that his temper is controlled. Feelings of helplessness, hopelessness and
worthlessness were not present. Anhedonic attitude was not present. Poverty of thought
was not present. Mood swings were not reported. Grandiosity was not present.” Id at 724.
Dr. Flexman diagnosed major depression, recurrent, mild; alcohol and
polysubstance abuse; and a somatoform disorder. Id. at 725. He opined that Plaintiff was
mildly impaired in his ability to understand, remember, and carry out short, simple
instructions; make judgments for simple work-related decision; sustain attention and
concentration; and interact appropriately with supervisors. Dr. Flexman believed Plaintiff
had moderate impairments in his ability to interact appropriately with the public and
coworkers, respond appropriately to work pressures, and respond to changes in the work
environment. Id. at 725-26.
C.

Drs. Nwokoro, Fernandez, Caldwell, and McCloud

In August 2010, Dr. Nwokoro co-signed a letter stating that Plaintiff was currently
under his care and the care “of several subspecialties including Psychiatry,
Gastroenterology and Pain Management.” Id. at 829. The letter further states, “He suffers
from multiple debilitations and progressive medical co-morbidities that worsened since he
sustained a major head injury in 2009....” Id. The diagnoses included, in part, bipolar
disorder, displacement of lumbar intervertebral disc without myelopathy, cognitive

4

deficits, difficulty walking. Id. According to Dr. Nwokoro, Plaintiff’s “memory is poor
and it is currently deteriorating and we are evaluating this trend. He also has significant
weakness to the right side and has a persisting antalgic gait and ataxia – requiring a
walking cane for balance.” Id. Dr. Nwokoro concluded that Plaintiff “is unable to sustain
any meaningful employment duties in any capacity at this time.” Id.
In October 2010, psychologist Dr. Fernandez reviewed the record and concluded
that Plaintiff had mild restriction in activities of daily living; moderate difficulties in
maintaining social functioning; moderate difficulties in maintaining concentration,
persistence or pace; and no repeated episodes of decompensation, each of extended
duration. Id. at 128. Dr. Fernandez assigned weight to Dr. Flexman’s statements about
Plaintiff’s functioning by finding his statements “consistent with the overall MER
[medical electronic record].” Id. at 133. Dr. Fernandez further wrote, “Opinion of Dr.
Nwokoro (2/1/10) that [Plaintiff] cannot sustain any work activity is not adopted due to it
being inconsistent with overall evidence, which shows [Plaintiff] capable of higher level
of functioning.” Id.
In October 2010, Dr. Caldwell reviewed the record and noted that all Plaintiff’s
fractures are well healed. Id. at 146. She acknowledged that Plaintiff continues to have
“chronic pain in his low back, right leg and right shoulder.” Id. According to Dr.
Caldwell, Plaintiff retained the ability to “perform medium work with postural and
manipulative limitations.” Id. In June 2011, Dr. McCloud examined the record, including

5

the records provided by Dr. Reddy, and reached the same conclusions as Dr. Caldwell. Id.
at 165
D.

Dr. Reddy

In January 2011, Dr. Reddy completed a Functional Capacity Evaluation, indicating
that Plaintiff was seen every four weeks “for medical pain management and medicine
modalities and/or injections, as necessary.” Id. at 558. Plaintiff’s diagnoses included
bilateral lumbar radiculopathy, traumatic brain injury, multiple rib fractures, pelvic
fractures, history of bipolar disorder, and chronic pain. Dr. Reddy identified Plaintiff’s
symptoms as chronic pain, instability with ambulation, somnolence, fatigue, and
depression. Objective signs of Plaintiff’s pain included significantly reduced range of
motion in his lumbar back, both hips, and both knees; tenderness, crepitus, muscle spasm,
and muscle weakness. Other signs were Plaintiff’s antalgic and impaired gait. Id. at 559.
Dr. Reddy believed that emotional factors contribute to the severity of Plaintiff’s
functional limitations and that his pain is severe. Id. at 559-60. His pain levels and other
symptoms are severe enough to interfere with his attention and ability to concentrate. Id.
at 560. Plaintiff takes methadone and percoset that causes him drowsiness and gastric
upset, according to Dr. Reddy. Id.
Dr. Reddy opined that Plaintiff could continuously sit for one to two hours, and
continuously stand for one hour. He must walk for ten minutes every ninety minutes. Dr.
Reddy further opined that Plaintiff could sit, stand, and walk for a total of about two hours

6

each in an eight-hour workday. As to Plaintiff’s lifting ability in a competitive work
environment, Dr. Reddy believed that Plaintiff could never lift any amount weight. Id. at
562. He has limitations in reaching up and down as well as limitations in pushing and
pulling. Dr. Reddy explained that these limitations were due to Plaintiff’s chronic right
shoulder pain and left shoulder restriction “as well as lumbar pain/pathology [that]
prevents repetitive reaching, pushing, and/or pulling.” Id. Dr. Reddy thought that
Plaintiff’s bilateral lumbar radiculopathy prevents Plaintiff from engaging in repetitive
foot movements. Id. at 563. Dr. Reddy also indicated that Plaintiff’s impairments or
treatment would, on average, cause him to be absent from work three or more times a
month. Id. at 564. And, Dr. Reddy believed that Plaintiff’s functional limitations began,
at the earliest, on June 6, 2009 (the date a car struck him). Id.
E.

Dr. Patwa

Psychiatrist Dr. Patwa initially assessed Plaintiff in January 2010. Id. at 818-20.
Plaintiff reported being nervous, anxious, tense, jittery, fidgety, and irritable. He further
indicated feelings of hopelessness, helplessness, worthlessness, and uselessness. He
reported isolation and suicidal ideations. Dr. Patwa diagnosed Plaintiff with bipolar
affective disorder, depression; panic disorder; polysubstance abuse by history, in
remission; and personality disorder versus posttraumatic stress disorder.
On several occasions, Dr. Patwa provided information and his opinions about
Plaintiff’s treatment, health problems, and work limitations. Dr. Patwa reported in March

7

2010 that Plaintiff was seen every two weeks for medication management and symptom
monitoring. Id. at 1326. His diagnoses included bipolar disorder, panic disorder, and
posttraumatic stress disorder. His symptoms included poor memory, sleep disturbance,
mood disturbance, blunt, flat or inappropriate affect, emotional liability, decreased energy,
hostility and irritability, recurrent panic attacks, intrusive recollections of a traumatic
experience, generalized persistent anxiety, difficulty concentrating or thinking. Id. Dr.
Patwa believed that Plaintiff was markedly limited in the majority of the mental work
activities. Id. at 1347-49. Dr. Patwa observed that Plaintiff is generally sedated with pain
medication when seen. Id. at 1349. His affect was blunted, and he was slow to respond.
Dr. Patwa found that Plaintiff had difficulty focusing, concentrating, and remembering.
His thoughts and speech were circumstantial and tangential. Dr. Patwa noted that
Plaintiff’s family complained of mood lability and perseveration.
In January 2011, Dr. Patwa wrote a brief letter stating that Plaintiff was currently
under his care and suffers from bipolar affective disorder, depression, and panic disorder.
According to Dr. Patwa, “Due to [Plaintiff’s] current symptoms and functioning levels, I
do feel that he is currently unemployable. Id. at 1338. In June 2012, Dr. Patwa again
provided his opinions about Plaintiff’s work limitations, which were similar to those he
had previously provided in March 2010. Id. at 1478-81. In February 2013, Dr. Patwa
wrote a one-paragraph letter stating that he reviewed his previous (June 2012) assessment
of Plaintiff’s residual functional capacity and confirmed its ongoing accuracy. Id. at 1732.

8

The administrative record contains many medical records plus opinions from
Plaintiff’s treating and non-treating medical sources. The ALJ and the parties have
accurately summarized the relevant records concerning Plaintiff’s physical and mental
impairments with citations to specific evidence. Further description of the medical
evidence is therefore duplicative and unnecessary.
III.

“Disability” Defined and the Administrative Decision
To be eligible for Disability Insurance Benefits or Supplemental Security Income a

claimant must be under a “disability” within the definition of the Social Security Act. See
42 U.S.C. §§ 423(a), (d), 1382c(a). The definition of the term “disability” is essentially the
same for both programs. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).
Narrowed to its statutory meaning, a “disability” includes only physical or mental
impairments that are both “medically determinable” and severe enough to prevent the
applicant from (1) performing his or her past job and (2) engaging in “substantial gainful
activity” that is available in the regional or national economies. See Bowen, 476 U.S. at
469-70.
To determine whether Plaintiff was under a benefits-qualifying disability, ALJ
Lombardo applied the Social Security Administration’s five-step sequential evaluation
procedure. See 20 C.F.R. § 404.1520(a)(4). Steps two, three, and four are the most
significant in this case.
At step two, the ALJ concluded that Plaintiff had the several impairments of

9

residual effects of motor vehicle accident (MVA)/multiple fractures, right shoulder
acromioclavicular joint (ACJ) injury with degenerative changes, bipolar disorder, and
history of substance abuse. (Doc. #5, PageID #61).
At step three, the ALJ concluded that Plaintiff’s impairments or combination of
impairments did not meet or equal the criteria in the Commissioner's Listing of
Impairments, including Listing sections for major dysfunction of a joint, reconstructive
surgery of a major weight-bearing joint, affective disorders and substance addiction
disorders. (Doc. #5, PageID #s 62-64).
At step four, the ALJ assessed the most functional activities Plaintiff could do in a
work setting despite his impairments, or his residual functional capacity,3 as follows:
[Plaintiff] has the residual functional capacity to perform light work ...
except with only occasional overhead reaching with the right, dominant
upper extremity and use of a cane to ambulate. Further, work must be
unskilled as defined in the Dictionary of Occupational Titles and low stress
defined as no assembly line production quotas and not fast paced. Finally,
work must involve no contact with the general public and only occasional
contact with coworkers and supervisors.
(Doc. #5, PageID #64). ALJ Lombardo also found that Plaintiff could not perform his past
relevant work.
At step five, the ALJ found that Plaintiff could perform unskilled, light exertional
jobs and that a substantial number of such jobs exist in the national economy. This ended
the ALJ’s evaluation, leading her to conclude, as noted previously, that Plaintiff was not

3

See Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002).

10

under a benefits-qualifying disability.
IV.

Judicial Review
The Social Security Administration’s determination of disability – here, embodied in

ALJ Lombardo’s decision – is subject to judicial review 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).
Reviewing the ALJ’s legal criteria for correctness may result in reversal even if the record
contains substantial evidence supporting the ALJ’s factual findings. Gentry v. Comm’r of
Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007).
The substantial-evidence review does not ask whether the Court agrees or
disagrees with the ALJ’s factual findings or whether the administrative record contains
evidence contrary to those factual findings. Rogers, 486 F.3d at 241; see Her v. Comm’r of
Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead, substantial evidence supports
the ALJ’s factual findings when “a ‘reasonable mind might accept the relevant evidence as
adequate to support a conclusion.’” Blakley, 581 F.3d at 406 (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; see
Gentry, 471 F3d at 722.

11

V.

Discussion
Plaintiff argues that ALJ Lombardo failed to properly evaluate the medical source

opinions and disregarded the opinions from treating physicians, Dr. Reddy, Dr. Patwa, and
Dr. Nwokoro. Plaintiff further argues that the ALJ improperly assigned “great weight” to
consulting psychologist, Dr. Flexman, “despite the fact he did not have an accurate history
and relied upon a ‘test’ to determine if bipolar disorder was present;” and gave “some
weight” to the opinions of the state agency non-examining physicians, Dr. Caldwell and Dr.
McCloud. (Doc. #6, PageID #1754). Plaintiff also maintains that ALJ Lombardo did not
properly develop the record but instead incorrectly focused on Plaintiff’s drug abuse when
assessing his residual functional capacity. Lastly, Plaintiff contends that the ALJ erred in
finding Plaintiff’s allegations are not credible and by not evaluating and crediting the
testimony of his father, Raymond Slaton.
The Commissioner contends that substantial evidence supports the ALJ’s decision.
The Commissioner reasons that the ALJ considered all of Plaintiff’s impairments and
accommodated them in her assessment of his residual functional capacity. Plaintiff has
failed to show that the assessment of his residual functional capacity is inadequate,
according to the Commissioner. And, the Commissioner maintains that the ALJ posed an
accurate hypothetical question to the vocational expert, and Plaintiff has failed to explain
why he cannot perform the jobs identified by the vocational expert.
Social security regulations build a hierarchy of medical sources opinions based
largely on the type of relationship a medical source has with the applicant for social
12

security. From top to bottom, the regulations characterize medical sources as treating
physicians or psychologists, nontreating yet examining physicians or psychologists, and
nontreating/record-reviewing physicians or psychologists. Gayheart v. Comm’r Social
Sec., 710 F.3d 365, 375 (6th Cir. 2013). The source of the opinions provided by a
physician or psychologist “dictates the process by which the Commissioner accords it
weight.” Id.
Treating sources’ position at the top of the hierarchy is reflected in the treating
physician rule. See Gayheart, 710 F.3d at 375; see also Rogers, 486 F.3d at 242. The rule
is straightforward:
Treating-source opinions must be given “controlling weight” if two
conditions are met: (1) the opinion is “well supported by medically
acceptable clinical and laboratory diagnostic techniques” and (2) the opinion
“is not inconsistent with other substantial evidence in [a claimant’s] case
record.”
Gayheart, 710 F.3d at 376 (quoting 20 C.F.R. §404.1527(c)(2)); see Gentry, 741 F.3d at
723. If both conditions do not exist, the ALJ’s review must continue:
When the treating physician’s opinion is not controlling, the ALJ, in
determining how much weight is appropriate, must consider a host of factors,
including the length, frequency, nature, and extent of the treatment
relationship; the supportability and consistency of the physician’s
conclusions; the specialization of the physician; and any other relevant
factors.
Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The ALJ began her consideration of the medical source opinions by placing “some
weight” on the opinions of two record-reviewing physicians, Dr. Caldwell and Dr.

13

McCloud, who addressed Plaintiff’s physical limitations. (Doc. #5, PageID #71). Later in
her decision, the ALJ placed “some weight” on the opinion provided by record-reviewing
psychologists, Drs. Fernandez and Voyten. Id. at 72. The ALJ’s decision, however,
contains no indication that she evaluated the opinions of these non-treating, recordreviewing medical sources under any of the factors required by the regulations. See id. at
71-72. This constituted error. The regulations require ALJs to weigh the opinions of nontreating medical sources “based on the examining relationship, (or lack thereof),
specialization, consistency, and supportability, but only if a treating-source opinion is not
deemed controlling.” Gayheart, 710 F.3d at 376 (citing 20 C.F.R. §404.1527(c)).
Because ALJ Lombardo found, later in her decision, that controlling weight was not
applicable to the opinions of Plaintiff’s treating medical sources, see Doc. #5, PageID #s
71-74, the ALJ erred by crediting the opinions of Drs. Caldwell and McCloud, and
psychologists Drs. Fernandez and Voyten, as worthy of some weight, without indicating
why. See id. Furthermore, the ALJ more rigorously scrutinized the opinions of Plaintiff’s
treating sources than she did the non-treating sources. This constituted error because “[a]
more rigorous scrutiny of the treating source opinion than the nontreating and
nonexamining opinions is precisely the inverse of the analysis that the regulations require.”
Gayheart, 710 F.3d at 379 (citing, in part, Social Security Ruling 96-6p, 1996 WL 374180,
at *2 (July 2, 1996)). “Unless a treating source’s opinion is given controlling weight, the
[ALJ] must explain in the decision the weight given to the opinions of a State agency
medical ... consultant[.]” 20 C.F.R. § 404.1527(e)(2)(ii).
14

The ALJ further erred by not evaluating the opinions of Plaintiff’s treating medical
sources – especially Dr. Reddy and treating psychologist Dr. Patwa – first under the legal
criteria required by the treating physician rule, then under the remaining regulatory factors.
There is no indication in the ALJ’s decision that she applied the correct legal criteria under
the treating physician rule, which is “at the heart of this regulation.” Gayheart, 710 F,3d at
377. By simply referring to several reasons for placing little weight on the treating sources’
opinions, the ALJ skipped over the primary status treating physicians generally have in
patient care and under the regulations. The regulations explain to social-security
applicants:
Generally, we give more weight to the opinions from your treating
sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your 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....
20 C.F.R. §404.1527(c)(2)4; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). The ALJ’s reasons, moreover, unmoor her decision not only from the criteria
applicable under the treating physician rule, but also from the regulation’s mandatory
requirement to continuing weighing treating-source opinions when the treating physician
rule does not apply. The problem here is not that the ALJ failed to refer to the regulatory
factors – she did, for example, note that “diagnostic testing did not reveal significant
4

The Social Security Administration has re-lettered 20 C.F.R. §404.1527 without altering the
treating physician rule or other legal standards. See Gentry, 741 F.3d at 723. The re-lettered version
applies to decisions, like the ALJ’s, issued on or after April 1, 2012.

15

lumbar disease.” (Doc. #5, PageID #72). The problem is that the ALJ’s reasons without
reference to, or consideration of, the treating physician rule, failed to indicate that she
considered that “in all cases there remains a presumption, albeit a rebuttable one, that the
opinion of a treating physician is entitled to great deference, its non-controlling status
notwithstanding. Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4 (‘In many cases, a treating
physician’s medical opinion will be entitled to the greatest weight and should be adopted,
even if it does not meet the test for controlling weight.’).” Rogers, 486 F.3d at 242. In
other words, the ALJ weighed the opinions provided by treating medical sources (Drs.
Reddy, Dr. Nwokoru, Dr. Patwa) under the same legal criteria applicable to medical
sources holding lower status on the regulation’s hierarchy of medical source opinions (Drs.
Caldwell, McCloud, Fernandez, and Voyten). This constituted error.
Next, the ALJ’s reliance on the lack of diagnostic testing concerning Plaintiff’‘s
lumbar spine, overlooked or ignored the many signs and symptoms Dr. Reddy observed in
January 2011. Dr. Reddy reported that Plaintiff had significantly reduced range of motion
in his lumbar spine, in both his hips, and in both his knees. He had tenderness, crepitus,
muscle spasm, and muscle weakness, and antalgic impaired gait – which is noted frequently
in Plaintiff’s medical records. (Doc. #5, PageID #559). Dr. Reddy also rated Plaintiff’s
pain as “severe” and that it would often interfere with his attention and concentration. Id.
at 560. He opined that Plaintiff’s “pain and functional limitations are the result of both
physical & emotional impairments ....” Id. There is no indication that the ALJ considered
Dr. Reddy’s opinion about the combined effects of Plaintiff’s physical and emotional
16

impairment. This is a significant omission in light of records of Plaintiff’s counseling
sessions that repeatedly refer to emotional problems he was experiencing from the trauma
of being struck by a car in June 2006. By overlooking or ignoring this, and instead
referring to the lack of objective testing to reject Dr. Reddy’s opinions, the ALJ erred. See
Brooks v. Comm'r of Soc. Sec., 531 Fed. App’x 636, 641 (6th Cir. 2013) (“Substantiality of
the evidence must be based upon the record taken as a whole. Substantial evidence is not
simply some evidence, or even a great deal of evidence. Rather, the substantiality of
evidence must take into account whatever in the record fairly detracts from its weight.”
(quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). The ALJ also found that
Dr. Reddy’s opinion was due little weight because “[o]ther than pain management
[Plaintiff] receives no treatment for any of his alleged impairments.” (Doc. #5, PageID
#72). Substantial evidence does not support this in light of Plaintiff’s mental-healthtreatment records, which document Plaintiff’s counseling sessions and treatment with
medication prescribed by treating psychiatrist Dr. Patwa. Again, the ALJ missteps by
overlooking or ignoring Dr. Reddy’s opinion that the combination of Plaintiff’s mental and
physical impairments as factors contributed to his severe pain.
Lastly, the ALJ based her decision to place little weight on Dr. Patwa’s opinions in
part on assessments of Plaintiff’s GAF. An ALJ’s reliance on GAF scores is considered
“on a case-by-case basis.” Miller v. Comm’r of Soc. Sec., __F.3d.__, 2106 WL 362423 at
*7 (6th Cir. Jan. 29, 2016).
A GAF score is a ‘subjective rating of an individual’s overall
17

psychological functioning,’ which may assist an ALJ in assessing a
claimant’s mental RFC. Kennedy v. Astrue, 247 F. App'x 761, 766 (6th
Cir.2007). GAF scores are ‘not raw medical data,’ id., and ‘the
Commissioner has declined to endorse the [GAF] score for use in’ Social
Security benefits programs, Lee v. Comm'r of Soc. Sec., 529 F. App'x 706,
716 (6th Cir. 2013) (quoting DeBoard v. Comm'r of Soc. Sec., 211 F. App'x
411 (6th Cir. 2006)).... [A]lthough a GAF score is ‘not essential to the RFC’s
accuracy,’ it nevertheless ‘may be of considerable help to the ALJ in
formulating the RFC.’ Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241
(6th Cir.2002).
Miller, 2016 WL 362423, at *7. In the present case, the ALJ viewed Plaintiff’s GAF
ratings as raw medical data that conflicted with Dr. Patwa’s opinions. This was
problematic because Dr. Patwa’s reached his opinions when he was certainly aware of the
GAF ratings in Plaintiff’s medical records. Rather than relying on another medical source
opinion, the ALJ relied on her own lay understanding of this raw medical data to discount
Dr. Patwa’s opinions. Additionally, the fifth and most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-5) has dropped the GAF. “DSM-5 explains
that the GAF was excluded for several reasons, among which were its lack of conceptual
clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and
questionable psychometrics in routine practice.” DSM-5 and the Assessment of
Functioning: The World Health Organization Disability Assessment Schedule 2.0, J. Am
Acad. Psychiatry and Law, 42:2:173-181 (June 2014) (footnote omitted) (available at
http://www.jaapl.org. Search by article title). Although the GAF scale was in use at the
time of the ALJ’s decision, its more recent rejection by the psychiatric professionals who
created it and its lack of direct correlation with the requirements of the Commissioner’s

18

mental disorders listings cast too dark a shadow over its use as a reason to reject a treating
psychiatrist’s opinions.
Accordingly, Plaintiff’s challenges to the ALJ’s weighing of the medical source
opinions are well taken.5
VI.

Remand is Warranted
Remand is warranted when the ALJ’s decision is unsupported by substantial

evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F3d at 746. Remand for an ALJ's failure to follow the regulations might
arise, for example, when the ALJ failed to provide “good reasons” for rejecting a treating
medical source's opinions, see Wilson, 378 F.3d at 545-47; failed to consider certain
evidence, such as a treating source’s opinions, see Bowen, 478 F3d at 747-50; failed to
consider the combined effect of the plaintiff's impairments, see Gentry, 741 F.3d at 725-26;
or failed to provide specific reasons supported by substantial evidence for finding the
plaintiff’s credibility lacking, Rogers, 486 F.3d at 249.
Under sentence 4 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). Consequently, a remand under
sentence 4 may result in the need for further proceedings or an immediate award of

5

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis
of the parties’ remaining contentions is unwarranted.

19

benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir.
1994). The latter is warranted “only where the evidence of disability is overwhelming or
where the evidence of disability is strong while contrary evidence is lacking.” Felisky v.
Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994) (quoting Faucher v. Sec’y of Health & Humans
Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A remand for an award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and because the evidence of disability is not
strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is
entitled to an Order remanding this matter to the Social Security Administration pursuant to
sentence 4 of §405(g) due to problems set forth above. On remand the ALJ should be
directed to review Plaintiff’s disability claim to determine anew whether he was under a
benefits-qualifying disability under the applicable 5-Step sequential evaluation procedure,
including, at a minimum, a re-assessment of the medical source opinions and the combined
effects of Plaintiff’s mental and physical impairments.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

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

3.

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

20

4.

The case be terminated on the docket of this Court.

February 5, 2016

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

21

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).

22