Theurer v. Commissioner of Social Security Administration

Filing 14

REPORT AND RECOMMENDATIONS: (1) The Commissioner's non-disability finding be VACATED; (2) Plaintiff Darrell Theurer's application for a period of disability and disability insurance benefits and supplemental security income, be REMANDED to the Social Security Administration for an immediate AWARD of benefits beginning December 14, 2009; and (3) This case be CLOSED on the docket of the Court. Objections to R&R due by 1/4/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 12/17/15. (cvf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DARRELL THEURER,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

: Case No. 3:14-cv-361
:
: District Judge Walter Herbert Rice
:
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:

REPORT AND RECOMMENDATION 1
This Social Security disability benefits appeal is before the Court on Plaintiff’s
statement of errors (Doc. 8), the Commissioner’s memorandum in opposition (Doc. 12),
Plaintiff’s reply (Doc. 13), the administrative record (Docs. 6 and 7), and the record as a
whole. At issue is whether the Administrative Law Judge (“ALJ”) erred in finding
Plaintiff “not disabled” and therefore not entitled to disability insurance benefits (“DIB”)
nor Supplemental Security Income (“SSI”). (See Doc. 6, PageID # 67-83 (“ALJ’s
decision”)).
I. INTRODUCTION
On August 2, 2010, Plaintiff Darrell Theurer protectively filed an application for a
period of disability and DIB, as well as SSI, alleging disability beginning December 14,
2009. (Doc. 6, PageID # 67). Plaintiff alleged he was unable to work due to the
1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendation.

following impairments: severe depression, anxiety, diabetes, neuropathy, sleep disorder,
slow reading, difficulty comprehending, and color blindness. (Id. at 371). His claim was
denied initially and on reconsideration. (Id. at 67).
Plaintiff requested a hearing before an ALJ, which was held on April 2, 2013. 2
(Doc. 6, PageID # 67). Plaintiff and a vocational expert (“VE”) testified, with Plaintiff’s
counsel in attendance. (Id.)
On June 26, 2013, ALJ Amelia G. Lombardo issued an unfavorable decision,
finding that Plaintiff had not been under a disability as defined in the Social Security Act,
and was therefore not entitled to a period of disability, DIB and SSI. (Id. at 64).
Although finding that Plaintiff was not capable of performing his past relevant work, the
ALJ found that Plaintiff had the residual functional capacity (“RFC”) 3 to perform a
reduced range of light work. (Id. at 77). Based on Plaintiff’s age, education, work
experience, and RFC, the ALJ found that there were a significant number of jobs in the
national and regional economy that Plaintiff could perform. (Id. at 82-83). Therefore,
the ALJ concluded that Plaintiff was not disabled. (Id. at 83).
The decision became final and appealable on September 4, 2014, when the
Appeals Council denied Plaintiff’s request for review. (Id. at 56-58). Plaintiff then

2

Plaintiff’s hearing was initially scheduled for October 26, 2012. (Doc. 6, PageID # 67).
However, Plaintiff appeared without a representative and it was decided that the hearing should
be postponed so Plaintiff could consider securing counsel and additional evidence could be
obtained. (Id.) The hearing was reconvened on April 2, 2013. (Id.)
3

A claimant’s RFC is an assessment of “the most [he] can still do despite [his] limitations.”
20 C.F.R. § 404.1545(a)(1).
2

properly commenced this action for judicial review of the Commissioner's decision
pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
At the time of the hearing, Plaintiff was 41 years old. (Doc. 6, PageID # 82). He
completed high school (through special education classes) in 1991, and had some training
in masonry work shortly thereafter. (Id. at 372). Plaintiff had no other specialized job
training, and had not attended any trade or vocational schools. (Id.) The ALJ determined
that Plaintiff had past relevant work as a construction worker, bicycle assembler, stock
clerk, building maintenance laborer, and lawn and garden machine assembler. (Id. at 8182). However, based on the VE’s testimony, the ALJ found that Plaintiff’s functional
limitations precluded him from returning to his past relevant work. (Id.)
The ALJ’s “Findings,” which represent the rationale of her decision, are as
follows:
1. The claimant meets the Title II disability-insured status requirements
of the Social Security Act through September 30, 2015.
2. The claimant has not engaged in substantial gainful activity since
December 14, 2009, the alleged disability onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: mild degenerative
disc disease of the cervical spine, residuals of injuries (multiple
fractures) suffered in a bicycle/motor vehicle collision, diabetes
mellitus, residual effects of remote metacarpal injury and more recent
metacarpal fracture, depression, anxiety, borderline intellectual
functioning (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 the severity of 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).
3

5. The claimant has the residual functional capacity to perform light
work as defined at 20 CFR 404.1567(b) and 416.967(b) subject to the
following additional limitations: unskilled low-stress tasks (i.e., no
assembly-line production quotas or fast-paced duties); no more than
frequent fingering and handling with the right dominant hand.
6. The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
7. The claimant was born on September 23, 1971. At age 41 he is
classified as a “younger individual” for Social Security purposes (20
CFR 404.1563 and 416.963).
8. The claimant has a high school education (20 CFR 404.1564 and
416.964).
9. The claimant does not have “transferable” work skills within the
meaning of the Social Security Act (20 CFR 404.1568 and 416.968).
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant was not disabled, as defined in the Social Security Act,
from December 14, 2009 through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
(Doc. 6, PageID ## 70-83). In sum, the ALJ concluded that Plaintiff was not under a
disability as defined by the Social Security Regulations and was therefore not entitled to a
period of disability, DIB, or SSI. (Id. at 83).
On appeal, Plaintiff argues that: (1) the ALJ failed to follow the Social Security
Administration’s own regulatory requirements in weighing the medical source opinions
which therefore denotes a lack of substantial evidence and an error as a matter of law;
and (2) the ALJ failed to properly evaluate Plaintiff’s credibility, pain, and symptoms,
4

pursuant to the Social Security Administration’s own rulings and regulations and Sixth
Circuit case law. (Doc. 8).
II. STANDARD OF REVIEW
The Court’s inquiry on appeal is limited to whether the ALJ’s non-disability
finding is supported by substantial evidence and whether the correct legal standard was
applied. 42 U.S.C. § 405(g); Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.
2010). Substantial evidence is more than a “mere scintilla” but less than a preponderance
of the evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971) (substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion”). In reviewing the ALJ’s decision, the district court must look to the record
as a whole and may not base its decision on one piece of evidence while disregarding all
other relevant evidence. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Even
if the district court “might have reached a contrary conclusion of fact, the [ALJ’s]
decision must be affirmed so long as it is supported by substantial evidence.” Kyle, 609
F.3d at 854-855 (citing Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604-05 (6th Cir.
2009)).
The claimant bears the ultimate burden to prove by sufficient evidence that he is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present
sufficient evidence to show that, during the relevant time period, he was unable to engage
in substantial gainful activity by reason of any medically determinable physical or mental
impairment, or combination of impairments, which has lasted or is expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).
5

III. BACKGROUND
The relevant facts, as reflected in the record, are as follow: 4
A. Relevant Medical Evidence
1. Alan Boerger, Ph.D.
Plaintiff was examined by non-treating psychologist, Alan Boerger, Ph.D., at the
request of the Bureau of Disability Determination (“BDD”) on October 2, 2010. (Doc. 6,
PageID ## 496-503). Dr. Boerger recorded that Plaintiff had experienced difficulties as a
child, including being diagnosed with diabetes and suffering possible mental abuse from
his mother and father. (Id. at 496). Dr. Boerger further noted that Plaintiff was homeless
at the time of the examination. (Id.)
Dr. Boerger indicated that Plaintiff has difficulty with reading, math, and was
unable to perform Serial 7s. (Id. at 497, 499). Plaintiff also showed difficulties with
comprehension, such as his inability to understand the phrase, “Don’t count your
chickens before they hatch.” (Id. at 499). Dr. Boerger opined that Plaintiff “seemed to
be of borderline range level intellectual abilities,” although his full scale IQ of 67 “falls
more than 2 standard deviations below the mean and is at the upper end of the range of
mild mental retardation.” (Id. at 500). Dr. Boerger listed Anxiety Disorder (not
otherwise specified) and Dysthymic Disorder for Plaintiff’s diagnosis. (Id. at 501).

4

Having thoroughly reviewed the administrative record, the Court finds that a detailed recitation
of all facts in this case is unnecessary and, therefore, restricts its statement of the facts to those
relevant to Plaintiff’s alleged errors. Specifically, as the ALJ’s errors in the overall assessment
regarding Plaintiff’s mental health alone warrant remand, the Court excludes discussion of
Plaintiff’s physical impairments.
6

2. Vicki Warren, Ph.D.
Non-examining state agency psychologist, Vicki Warren, Ph.D., conducted an
initial review of the record on January 15, 2011 at the request of the BDD. (Doc. 6,
PageID ## 151-52). Dr. Warren opined that Plaintiff’s “BIF [borderline intellectual
functioning] limits [him] to the performance of simple and moderately complex tasks,
which do not require long periods of concentration.” (Id. at 151). Further, Dr. Warren
opined that Plaintiff was moderately limited in in his ability to respond appropriately to
changes in the work setting and to set realistic goals or make plans independently of
others. 5 (Id. at 152). Accordingly, Dr. Warren noted that any workplace changes must
be infrequent and easily explained. (Id.)
3. Karen Steiger, Ph.D.
On May 3, 2011, non-examining state agency psychologist, Karen Steiger, Ph.D.,
reviewed the record on reconsideration. (Id. at 182-83). Dr. Steiger’s opinion was
identical to Dr. Warren’s initial review. (Id.)
4. Mental Health Emergencies
Plaintiff presented to the emergency room at Wayne Hospital on July 12, 2011,
with complaints of chronic pain in his knees, hips, and lower back; suicidal thoughts; and
5

See Social Security Ruling 85-15, 1985 WL 56857, at * 4 (“The basic mental demands of
competitive, remunerative, unskilled work include the abilities (on a sustained basis) to
understand, carry out, and remember simple instructions; to respond appropriately to supervision,
coworkers, and usual work situations; and to deal with changes in a routine work setting. A
substantial loss of ability to meet any of these basic work-related activities would severely limit
the potential occupational base. This, in turn, would justify a finding of disability because even
favorable age, education, or work experience will not offset such a severely limited occupational
base”).
7

depression, stating he “just wanted to end [his] life.” (Doc. 7, PageID ## 1187, 1189).
He advised the hospital staff that no amount of medicine was going to help. (Id. at 1191).
Plaintiff again presented to the Wayne Hospital emergency room on December 6,
2012 with complaints of depression, anxiety, and suicidal thoughts. (Id. at 1338-1386).
He reported feeling hopeless, helpless, not sleeping, having difficulty functioning, and
feeling overwhelmed. (Id. at 1369). He stated he was sleeping less than four hours each
night. (Id.) He also reported significant mood swings, anger, agitation, and irritability.
(Id.) It was further noted that Plaintiff’s mother had obtained a restraining order against
him, as he had allegedly threatened to kill her. (Id.) Plaintiff was admitted to the hospital
and placed on observation after he expressed fear that he was losing control and that he
would hurt himself and others. (Id.) He was diagnosed with Major Depression,
Recurrent and Severe. (Id. at 1370). Plaintiff was discharged on December 11, 2012,
after it was determined that through medication and therapy, Plaintiff’s mood had
stabilized and he no longer posed a threat to himself or others. (Id.)
5. David Lauffenburger, Ph.D.
Treating source, David Lauffenburger, Ph.D., of Darke County Mental Health,
began treating Plaintiff on December 5, 2011 and continued seeing him regularly on a
weekly to bi-weekly basis. (Doc. 7, PageID ## 1438). Dr. Lauffenburger completed a
Mental Impairment Questionnaire for Plaintiff on January 29, 2013. (Id. at 1438-1440).
Dr. Lauffenburger diagnosed Plaintiff with severe Major Depressive Disorder. (Id. at
1438). He identified Plaintiff’s signs and symptoms as sleep disturbance, mood
disturbances, anhedonia (pervasive loss of interests), psychomotor agitation or
8

retardation, and suicidal ideation or attempts. (Id.) He noted that Plaintiff “periodically
has become depressed to the point of suicidal thoughts and need for hospitalization.” (Id.
at 1439).
Dr. Lauffenburger opined that Plaintiff’s impairments have lasted or can be
expected to last at least 12 months. (Id.) Dr. Lauffenburger further noted that Plaintiff’s
impairments would cause him to be absent from work more than three times a month, and
that, on average, he would be distracted by his psychological symptoms during half of an
eight hour work day. (Id. at 1440). Dr. Lauffenburger concluded that Plaintiff’s mental
impairment caused him to experience a moderate degree of: restrictions of daily living
activities, difficulty in maintaining social functioning, and episodes of deterioration or
decompensation in work; and a marked degree of deficiency in his concentration,
persistence, or pace, resulting in failure to complete tasks in a timely manner. (Id.)
6. Irfan Dahar, M.D.
Treating source, psychiatrist Irfan Dahar, M.D., of Darke County Mental Health,
began treating Plaintiff in July 2011and continued seeing him regularly every six to eight
weeks. (Doc. 6, PageID # 894). In addition to providing extensive treatment records, Dr.
Dahar completed a Mental Impairment Questionnaire on February 4, 2013. (Id. at 894896). Dr. Dahar diagnosed Plaintiff with Recurrent Depression, Severe. (Id. at 894). He
identified Plaintiff’s signs and symptoms as poor memory, sleep disturbance, mood
disturbances, anhedonia or pervasive loss of interests, difficulty thinking or
concentrating, and suicidal ideation or attempts. (Id.)
compliant with the prescribed medication. (Id. at 895).
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He also noted that Plaintiff was

Dr. Dahar opined that Plaintiff’s mental impairments have lasted or can be
expected to last at least 12 months. (Id.) Dr. Dahar further noted that Plaintiff’s
impairments would cause him to be absent from work more than three times a month and
that, on average, he would be distracted by his psychological symptoms during half of an
eight hour work day. (Id. at 896). Dr. Dahar concluded that Plaintiff’s mental
impairment caused him to experience a moderate degree of: restrictions of daily living
activities, difficulty in maintaining social functioning, and episodes of deterioration or
decompensation in work; and a marked degree of deficiency in his concentration,
persistence, or pace, resulting in failure to complete tasks in a timely manner. (Id.)
B. The Administrative Hearing
1. Plaintiff’s Testimony
Plaintiff testified that he was living in a first floor apartment; however, he was
previously homeless for an extended period of time and had been living outside, with
others, or wherever he “could find or get to get through the night or day.” (Doc. 6,
PageID # 98). Eventually, his mental health provider helped him find shelter. (Id.)
Richard Baker, his mental health case worker, drove Plaintiff to the hearing. (Id.)
Plaintiff testified to past work framing houses and stated that he worked at WalMart. (Id. at 99). He was let go from Wal-Mart “because of the economy” around 2009.
(Id. at 100). He also tried to work temporary jobs in 2010, but was unsuccessful in
maintaining employment. (Id.) Plaintiff testified that he injured his dominant right-hand
while working at Wal-Mart and now can only use his first three fingers, making it
difficult to grab objects or open things. (Id. at 104).
10

In 2012, Plaintiff was hit by a car while riding his bicycle. (Id. at 105). The
accident fractured his legs and broke four ribs. (Id.) He testified that his left side “hurts
like crazy.” (Id. at 106).
Plaintiff has also been diabetic since the age of three and takes insulin for his
diabetes, although he still experiences symptoms such as fluctuating blood sugar levels.
(Id. at 114-115). These symptoms have caused him to seek treatment at the emergency
room. (Id. at 115). Further, Plaintiff suffers from diabetic retinopathy, which has caused
50-75% blindness in his right eye. (Id. at 105). Plaintiff wears prescription eyeglasses,
but is still unable to see well out of his right eye. (Id.)
As to mental impairments, Plaintiff testified that he receives mental health
treatment at Darke County Mental Health. (Id.) He sees his psychologist, Dr.
Lauffenburger, once a week when he is having problems. (Id. at 116). He also sees his
psychiatrist, Dr. Dahar, once every six weeks. (Id.) Plaintiff testified that he has trouble
concentrating due to his psychological symptoms, noting that concentration is “very hard
to do even with a movie or even a book or even on a computer and stuff.” (Id. at 119).
He stated that he was in special education classes in all subjects when he attended school.
(Id. at 112). Plaintiff relies on his case manager to help him fill out forms, as he has
difficulty figuring them out. (Id. at 113). Plaintiff sought assistance from the Bureau of
Vocational Rehabilitation (“BVR”) to help him find a job; however, after performing an
evaluation, the BVR were unable to place him in any position. (Id. at 115). Plaintiff
stated that his inability to find a job despite his best efforts makes it harder for him, as it
worsens his depression, and hurts his feelings. (Id. at 120).
11

A typical day for Plaintiff involves getting up and taking a shower to loosen up his
muscles. (Id. at 107). He then eats breakfast and reads the “24 hour book,” which is a
book from Alcoholics Anonymous (“AA”) that helps him through the day. (Id. at 108).
He attends AA meetings about six times per week. (Id.) He walks to his meetings. (Id.)
Plaintiff also reads his Bible and attends church on Sundays. (Id. at 108-109). He also
volunteers to clean at his church when he can. (Id. at 111).
2. The VE’s Testimony
Vocational expert Eric Pruitt testified that an individual who suffered from
psychological problems that would cause him to be off-task as often as half the work day
would not be able to maintain full-time employment at any exertional level. (Id. at 128).
He also testified that an individual limited to sedentary work with the restrictions of only
occasional near acuity; no binocular vision; only occasional forceful gripping on the right
dominant hand; only occasional contact with coworkers and supervisors; and unskilled
low-stress work, would not be able to perform even unskilled work. (Id.)
C. The ALJ’s Decision
As to mental impairments, the ALJ relied exclusively on the opinions of nonexamining BDD reviewing psychologists, Drs. Warren and Steiger, in determining that
Plaintiff was not under a disability as defined by the Social Security Regulations and,
therefore, not entitled to benefits.
IV. ANALYSIS
A. The ALJ Erred in Weighing Medical Source Opinions

12

Plaintiff argues that the ALJ failed to adhere to the regulatory requirements for
weighing medical opinions and, further, that she erred in disregarding the opinions of his
treating physicians, Dr. Lauffenburger and Dr. Dahar.
“Regardless of its source, [the ALJ must] evaluate every medical opinion [she]
receive[s],” in order to determine whether a claimant is disabled. 20 C.F.R. § 1527(b),
(c). However, “not all medical sources need be treated equally.” Brooks v. Comm’r of
Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (internal quotation marks and citations
omitted). The Regulations require that a treating doctor’s opinion be given “controlling
weight” as long as it is “well-supported” by objective evidence and is “not inconsistent
with the other substantial evidence.” 20 C.F.R. § 1527(d)(2). Greater weight is generally
given to the opinions of treating sources because treating physicians can provide a
detailed, longitudinal picture of a claimant’s medical impairments and may bring a
unique perspective to the medical evidence that cannot be obtained from reports of
individual examinations (e.g., consultative examinations) or from objective findings
alone. Id. Accordingly, less weight is given to non-treating and, certainly, nonexamining sources. Id.
However, ‘[i]t is an error to give an opinion controlling weight simply because it
is the opinion of a treating source if it is not well-supported by medically acceptable
clinical and laboratory diagnostic techniques or if it is inconsistent with the other
substantial evidence in the case record.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2,
1996)). “If the opinion of a treating source is not accorded controlling weight, an ALJ
13

must apply certain factors – namely, the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship, the
supportability of the opinion, consistency of the opinion with the record as a whole, and
the specialization of the treating source – in determining what weight to give the
opinion.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (discussing
20 C.F.R. § 1527(d)(2)).
If, upon consideration of the § 1527 factors, the ALJ rejects the opinion of a
treating physician, she must articulate “good reasons” for doing so. Wilson, 378 F.3d at
544. “The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases … [but] also ensures that the ALJ applies the treating physician
rule and permits meaningful review of the ALJ's application of the rule.” Id. at 544-45
(internal quotation marks and citations omitted). In particular, the ALJ’s decision must
articulate the “specific reasons for the weight given to the treating source's medical
opinion, supported by the evidence in the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source's medical opinion and the reasons for that weight.” Soc. Sec. Rul. 96-2p, 1996
WL 374188, at *5 (July 2, 1996). Notably, the ALJ’s duty to properly articulate ‘good
reasons’ is so significant that, “failure to follow the procedural requirement of identifying
the reasons for discounting the opinions and for explaining precisely how those reasons
affected the weight accorded the opinions denotes a lack of substantial evidence, even
where the conclusion of the ALJ may be justified based upon the record.” Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007) (emphasis added).
14

Here, the ALJ determined that the opinions of Plaintiff’s treating physicians,
David Lauffenburger, Ph.D. and Irfan Dahar, M.D., “cannot be given controlling or even
deferential weight (and are, in fact, entitled to no weight whatsoever).” (Doc. 6, PageID
# 74).
In discussing the medical opinions of Plaintiff’s treating physicians, the ALJ states
that Dr. Lauffenburger diagnosed Plaintiff with major depressive disorder and assigned
Plaintiff a Global Assessment of Functioning (“GAF”) score of 60. 6 (Doc. 6, PageID #
72). The ALJ made a particular point of noting that a GAF score of 60, while actually
indicative of moderately severe psychological symptoms and social functioning, is also
technically at the borderline of ‘mild’ symptoms. 7 (Id.) The ALJ acknowledged that Dr.
Lauffenburger believed Plaintiff “might miss work more than three times per month and
that he might be distracted by psychological symptoms about ½ of any given work day
(Exhibit 54F at 3).” (Id.) Further, the ALJ notes that according to Dr. Lauffenburger,
Plaintiff experiences ‘marked’ deficiencies in concentration, persistence or pace;
‘moderate’ restriction of activities of daily living; and ‘moderate’ difficulty in

6

A GAF score is used to report a clinician’s judgment as to a patient’s overall level of
psychological, social, and occupational functioning. DSM-IV-TR Classification Appendix,
available at: http://wps.prenhall.com/wps/media/objects/219/225111/CD_DSMIV.pdf. The
GAF scale ranges from 0 to 100, divided into ten-point increments. Id. A lower GAF score is
indicative of greater symptom severity and difficulty functioning. Id.
7

A GAF score between 51 and 60 indicates “moderate” symptoms. DSM-IV-TR. The DSMIV-TR states that a GAF score of 51 to 60 indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational,
or school functioning (e.g., few friends, conflicts with peers or co-workers).” Id.
15

maintaining social functioning. (Id.) The ALJ also states that Dr. Lauffenburger
“characterized [Plaintiff’s] prognosis as ‘good.’” (Id.)
Next, the ALJ addresses the opinion of Plaintiff’s treating physician, Dr. Dahar, by
stating only that “[c]uriously, [Dr. Dahar], provided identical conclusions to those of Dr.
Lauffenburger (compare Exhibits 21F and 54F).” (Doc. 6, PageID # 72). Notably, the
ALJ’s observation is entirely inaccurate. 8 The ALJ then moves on to summarizing the
opinions of BDD examining psychologist Alan Boerger, Ph.D., and evaluating
psychologists Vicki Warren, Ph.D., and Karen Steiger, Ph.D. (Id. at 72-73).
As to Dr. Boerger, who examined Plaintiff at the request of the BDD, the ALJ
notes that he diagnosed Plaintiff with anxiety disorder (not otherwise specified),
dysthymic disorder, and borderline intellectual functioning, and ultimately assigned
Plaintiff a GAF score of 55. (Doc. 6, PageID # 72). Further, the ALJ states that Dr.
Boerger opined that Plaintiff’s ability to relate to others is ‘mildly’ impaired; ability to
understand and follow instructions is ‘moderately’ impaired; ability to maintain attention
for simple repetitive tasks is ‘moderately’ impaired; and ability to cope with stress is
‘mildly’ impaired. (Id. at 73).
Finally, as to Drs. Warren and Steiger, who evaluated Plaintiff at the request of the
BDD, the ALJ states that both doctors opined that Plaintiff had a “severe mental
8

For example, Dr. Dahar notes Plaintiff’s “Highest GAF past year” as 50, whereas Dr.
Lauffenburger opines it was 60. (Compare Doc. 6, PageID # 894, with Doc. 7, PageID # 1438).
Additionally, in listing Plaintiff’s “signs and symptoms,” the doctors agree in most areas, but
differ in their opinions as to “poor memory” and “psychomotor agitation or retardation.” (Id.)
Most significantly, Dr. Lauffenburger lists Plaintiff’s prognosis as “good,” whereas Dr. Dahar
states that it is “fair.” (Compare Doc. 6, PageID # 895, with Doc. 7, PageID # 1439).
16

impairment.” (Doc. 6, PageID # 73). Further, both Drs. Warren and Steiger found that
Plaintiff suffered from ‘mild’ limitation in his ability to maintain social functioning;
‘moderate’ limitation in his ability to maintain concentration, persistence, or pace; and
that he did not experience repeated episodes of psychological decompensation of
extended duration in the relevant past. 9 (Id. at 73).
Significantly, the ALJ acknowledges that “[i]f credible, the degree of mental
limitation described by Dr. Lauffenburger and Dr. Dahar would lead to the
conclusion that [Plaintiff] is unable to engage in competitive employment.” (Doc. 6,
PageID # 73) (emphasis added). However, the ALJ quickly discredits the treating source
opinions, stating that “when viewed within the context of the entire record, the degree of
limitation described by Dr. Lauffenburger and Dr. Dahar is found to be quite excessive
and is given no weight.” (Id.)
In electing to completely discredit Plaintiff’s treating sources, the ALJ stated that
their “conclusions are purely speculative and viewed with considerable skepticism
(especially given the fact that both assessments were done at the behest of [Plaintiff’s]
counsel and were purportedly completed separately and on different dates [days apart]
but are identical).” 10 (Id. at 74). Rather than even entertaining the notion that any
9

Notably, the ALJ showed no concern over the identical findings of the BDD evaluators, Drs.
Warren and Steiger, despite her absolute disbelief in the validity of Plaintiff’s treating source
opinions merely due to their similarity.
10

The ALJ did not take issue with the evaluations at the State agency’s request, despite her
grave skepticism in the treating sources’ Questionnaires provided at Plaintiff’s counsel’s request.
Further, the ALJ failed to consider that, regardless of who elicited the Questionnaire, the opining
doctors treated Plaintiff on a regular and frequent basis for over a year.
17

similarity in their opinions is, in fact, supportive of their individual conclusions, the ALJ
baselessly states that “[t]he extent of impairment described could only be based on
uncritical acceptance of [Plaintiff’s] subjective complaints.” (Id.) (Emphasis added).
The ALJ claims that Drs. Lauffenburger and Dahar’s opinions are “neither well
supported by medically acceptable clinical and laboratory diagnostic techniques nor
consistent with other substantial evidence in the case record.” (Id.)
As an initial matter, it is well-established that mental disorders are extremely
difficult to ascertain and verify with the same precision, documentation, and objective
testing available for physical conditions. Keeton v. Comm’r of Soc. Sec., 583 F.App’x
515, 526 (6th Cir. 2014) (“This Court has acknowledged the difficulty inherent in
proving psychological disabilities”) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1121
(6th Cir. 1989) (“[A] psychiatric impairment is not as readily amenable to substantiation
by objective laboratory testing as a medical impairment”)). Accordingly:
[W]hen mental illness is the basis of a disability claim, clinical and
laboratory data may consist of the diagnosis and observations of
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, 874 F.2d at 1121 (quoting Poulin v. Bowen, 817 F.2d 865, 873-74 (D.C.
Cir. 1987)) (emphasis added); see Warford v. Astrue, No. 09-52, WL 3190756, at *6
(E.D. Ky. Aug. 11, 2010) (finding interviews are an acceptable diagnostic technique in
the area of mental impairments). Thus, the Commissioner’s argument, and the ALJ’s

18

reasoning, that the absence of objective findings provided proper basis to completely
reject Plaintiff’s treating source opinions is wholly unpersuasive. (Doc. 12 at 8).
The Commissioner also argues that the ALJ properly gave “no weight” to
Plaintiff’s treating source opinions because they are allegedly inconsistent with the record
as a whole. (Doc. 12 at 8). In support, the Commissioner reiterates the argument that
“the [treating source] doctors did not describe any significant symptoms or clinical
findings that support their opinions.” (Id. at 9). However, as set forth, supra, this
argument is erroneous. Further, the treating sources listed clinical signs and symptoms
observed throughout the course of Plaintiff’s regular and frequent treatment, and the
record is replete with treatment, emergency department, and hospital admission notes
confirming the treating sources’ opinions and reporting consistent signs and symptoms of
mental impairment, including severe depression, suicidal thoughts, anxiety, panic attacks,
insomnia, difficulty remaining alert and attentive, difficulty with cognitive and motor
skills, difficulty with comprehension, difficulty with general daily functioning, and
borderline mental retardation. (See, e.g., Docs. 6 and 7, PageID ## 441-480, 581-590,
614-637, 772-786, 817-831, 848-865, 874, 889-892, 1338-1386, 1563-1586). Both the
ALJ and Commissioner failed to properly consider the vast majority of the record
evidence, instead focusing only on notes indicating that Plaintiff was doing “fairly well”
or that his prognosis was “good.”
Further, Plaintiff correctly argues that the ALJ erroneously subjected the treating
source opinions to high scrutiny, while applying no scrutiny to the state agency opinions,
which is precisely the inverse of the analysis required under the Social Security Rules and
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Regulations. 20 C.F.R. § 404.1527(c); Soc. Sec. Rul. No. 96-6p; Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 380 (6th Cir. 2013) (“the regulations do not allow the application
of greater scrutiny to a treating source opinion as a means to justify giving such an
opinion little weight. Indeed, they call for just the opposite”).
Moreover, the ALJ’s reliance on the non-examining source evaluations is rendered
all the more problematic, given that their evaluations were conducted in January and May
2011, and therefore, pre-date significant medical developments, such as Plaintiff’s
mental breakdown and in-patient hospitalization at Darke County Mental Health, and
Plaintiff’s treating source opinions. “When an ALJ relies on a non-examining source
who ‘did not have the opportunity to review’ later submitted medical evidence, especially
when that evidence ‘reflects ongoing treatment,’ we generally require ‘some indication
that the ALJ at least considered these [new] facts before giving greater weight to an
opinion that is not based on a review of a complete case record.’” Brooks, 531 F. App’x
at 642 (quoting Blakley, 581 F.3d at 409)). However, here, the ALJ failed to give serious
consideration to any subsequent medical evidence and, in fact, baselessly discredited and
completely disregarded all such evidence.
Finally, even if the ALJ’s decision to discredit treating source opinions was
justified, the ALJ still failed to comply with the Social Security Administration’s Rulings,
which direct that:
Adjudicators must remember that a finding that a treating source’s medical
opinion is not well-supported by medically acceptable clinical and
laboratory techniques or 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. Treating
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source opinions are still entitled to deference and must be weighed using all
of the factors provided in 20 C.F.R. § 404.1527…..
Soc. Sec. Rul. No. 96-2p (emphasis added). Generally, “a treating source’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.” Id.; see Rothgeb v. Comm’r of Soc. Sec., 626
F. Supp. 2d 797, 807 (S.D. Ohio 2009) (“the ALJ erred by applying only the standards to
determine if [the treating source opinion] was entitled to controlling weight under the
treating physician rule, but failing to apply the remaining factors required by the
Regulations”).
Thus, the ALJ’s finding that the treating source opinions were not well-supported
by medically acceptable clinical and laboratory techniques and inconsistent with the other
substantial evidence in the case record only entitled her to decline controlling weight to
those opinions, not to reject them entirely without further consideration. Accordingly,
the ALJ’s failure to continue to weigh each opinion as required by the SSA’s Rulings and
Regulations denotes a lack of substantial evidence. Cole v. Astrue, 661 F.3d 931, 937
(6th Cir. 2011) (“[a]n ALJ's failure to follow agency rules and regulations denotes a lack
of substantial evidence”). This error requires reversal.
In sum, the ALJ erred by failing to afford proper weight to Plaintiff’s treating
sources’ opinions and instead relying upon the opinion of two non-examining
psychologists, whose opinions pre-dated significant medical developments evidenced on
the record. Further, the ALJ’s determination that the treating sources’ opinions are
inconsistent with the record is not supported by substantial evidence. In fact, the
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opinions of Drs. Lauffenburger and Dahar, who treated Plaintiff on a regular and frequent
basis for well over one-year are well-supported by the record evidence and entitled to
controlling weight.
Therefore, the ALJ’s erred as a matter of law in her analysis of the medical
evidence and the decision must be reversed.
B. The ALJ Erred in Assessing Plaintiff’s Credibility
Next, Plaintiff argues that the ALJ’s erred in finding that he is not credible.
In making a determination of disability, “an ALJ is not required to accept a
claimant’s subjective complaints and may properly consider [the claimant’s] credibility.”
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). 11 The Court must
“accord the ALJ’s determination of credibility great weight and deference particularly
since the ALJ has the opportunity … of observing [the claimant’s] demeanor while
testifying.” Id. However, to appropriately evaluate the credibility of the claimant’s
statements, the ALJ “must consider the entire case record, including the objective
medical evidence, the individual’s own statements about symptoms, statements and other
information provided by treating or examining physicians or psychologists and other
persons about the symptoms and how they affect the individual, and any other relevant
evidence in the case record.” Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *1 (July 2,
1996).

11

Subjective complaints may “support a claim for disability, if there is also objective medical
evidence of an underlying medical condition in the record.” Jones, 336 F.3d at 475-76.
22

The ALJ’s credibility determination “must contain specific reasons for the finding
on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight …
[given] to the individual's statements and the reasons for that weight.” Id., at *2. Indeed,
“‘[i]t is more than merely ‘helpful’ for the ALJ to articulate reasons ... for crediting or
rejecting particular sources of evidence. It is absolutely essential for meaningful
appellate review.’” Hurst v. Sec’y of Health & Human Servs., 753 F.2d 517, 519 (6th
Cir. 1985) (quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
“One strong indication of the credibility of an individual's statements is their
consistency, both internally and with other information in the case record.” SSR 96-7p,
at *5. “Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among medical reports, claimant’s testimony, and other evidence.”
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citations omitted).
However, “[a]n individual's statements about the intensity and persistence of pain or
other symptoms or about the effect the symptoms have on his or her ability to work may
not be disregarded solely because they are not substantiated by objective medical
evidence.” SSR 96-7p, at *1.
Here, the ALJ gave very little reasoning for discrediting Plaintiff regarding his
mental impairments, other than mentioning his ability to perform basic, sporadic daily
activities. (Doc. 6 at 80-81). Admittedly, daily activities, although not dispositive, may
show that a claimant’s symptoms are not as limiting as alleged. See 20 C.F.R. §§
404.1529(c)(3)(i), 416.929(c)(2)(i); see Blacha v. Sec’y of Health & Human Servs., 927
23

F.2d 228, 231 (6th Cir. 1990) (an ALJ may “consider household and social activities
engaged in by the claimant in evaluating a claimant’s assertions of pain or ailments”).
However, there is a significant difference between doing minimal daily activities and
performing work on a regular and continuing basis. 12 See, e.g., Rogers, 486 F.3d at 24849 (the minimal daily functions of driving, cleaning an apartment, caring for pets,
laundry, reading, exercising and watching the news are not comparable to typical work
activities).
While it is not apparent what weight, if any, the ALJ gave Plaintiff’s statements
regarding his mental impairments, it is evident that the ALJ discredited his statements
merely due to his ability to engage in daily activities such as going to church, reading,
and going to Alcoholics Anonymous meetings. (Doc. 6, PageID ## 80-81). However,
Plaintiff’s ability to perform these limited activities is not substantial evidence that his
symptoms are not disabling and does not support a finding that he can perform substantial
gainful activity in a full-time work position. See 20 C.F.R. § 404.1572(c) (“[g]enerally,
we do not consider activities like taking care of yourself, household tasks, hobbies,
therapy, school attendance, club activities, or social programs to be substantial gainful
activity”) (emphasis added). Thus, Plaintiff’s ability to engage in therapeutic and
rehabilitative activities such as reading the Bible, going to church weekly, or attended
Alcoholics Anonymous meetings, does not equate to an ability to work forty-hours per
12

“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis.” SSR 96-8p, 1996 WL
374184, at *1 (emphasis added). The term “‘regular and continuing basis’ means 8 hours a day,
for 5 days a week, or an equivalent work schedule.” Id.
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week, and therefore is not a legitimate reason to discredit Plaintiff’s allegations. This is
particularly true where, as here, Plaintiff’s allegations are amply supported on the record.
Indeed, the record reflects that Plaintiff has difficulty with many aspects of basic daily
living. Plaintiff’s social worker described him as “basically a child in a man’s body,” and
stated that she helps him do laundry, draw the proper amount of insulin, and even has to
remind him to brush his teeth. (Doc. 6, PageID ## 387, 392).
In short, the ALJ failed to properly evaluate and articulate Plaintiff’s credibility
regarding his symptoms and, therefore, her decision is not supported by substantial
evidence.
V. REMAND FOR BENEFITS
Remand is appropriate when the ALJ’s decision is not supported by substantial
evidence or where the Commissioner failed to apply the correct legal criteria. Bowen,
478 F3d at 746. Moreover, even if supported by substantial evidence, remand is
appropriate if the ALJ failed to follow the Administration’s own regulations, thereby
prejudicing a plaintiff on the merits or depriving a plaintiff of a substantial right. Id.
Remand may also be warranted when the ALJ failed to consider certain evidence, or
when the ALJ failed to consider the combined effect of the plaintiff’s impairments. Id. at
747-50; Gentry, 741 F.3d at 725-26.
The Court has 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 v.
Sullivan, 501 U.S. 89, 100 (1991). Accordingly, where, as here, the non-disability
determination is not supported by substantial evidence, the Court must decide whether to
25

reverse and remand the matter for rehearing, or to reverse and order benefits be granted.
42 U.S.C. § 405(g).
Generally, benefits may be awarded immediately “only if all essential factual
issues have been resolved and the record adequately establishes a plaintiff’s entitlement
to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.
1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec’y of
Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). The Court may award
benefits where the proof of disability is overwhelming, or where proof of disability is
strong and opposing evidence is lacking in substance, such that remand would merely
involve the presentation of cumulative evidence. Faucher, 17 F.3d at 176; see also
Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985).
As fully recited here, and as evidenced by the medical record and the credible and
controlling findings of treating mental health specialists, Drs. Lauffenburger and Dahar,
Plaintiff is unable to engage in substantial gainful activity due to his numerous severe,
medically determinable mental impairments. Further, in light of the ALJ’s significant
concession that “[i]f credible, the degree of mental limitation described by Dr.
Lauffenburger and Dr. Dahar would lead to the conclusion that [Plaintiff] is unable to
engage in competitive employment,” there is no doubt that an award of benefits is
appropriate in this case. (Doc. 6, PageID # 73). Proof of disability is overwhelming in
the instant case, and remand will serve no purpose other than delay.

26

VI. CONCLUSION
Based upon the foregoing, the Court believes the decision of the Commissioner
that Plaintiff Darrell Theurer was not entitled to supplemental security income and
disability insurance benefits, is NOT SUPPORTED BY SUBSTANTIAL EVIDENCE,
and should be REVERSED; and that this matter should be REMANDED to the
Commissioner for an immediate AWARD of benefits beginning December 14, 2009.
That is, Plaintiff’s Statement of Errors is well-taken and should be sustained.
Accordingly, the Court RECOMMENDS that:
1. The Commissioner’s non-disability finding be VACATED;
2. Plaintiff Darrell Theurer’s application for a period of disability and
disability insurance benefits and supplemental security income, protectively
filed on August 2, 2010, be REMANDED to the Social Security
Administration for an immediate AWARD of benefits beginning December
14, 2009; and
3. This case be CLOSED on the docket of the Court.
Date: 12/17/15

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 if 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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