Smith v. Social Security Administration

Filing 15

SUPPLEMENTAL REPORT AND RECOMMENDATION THAT: (1) THE ALJ'S NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (#) THIS CASE BE CLOSED. Objections to R&R due by 2/22/2016. Signed by Magistrate Judge Michael J. Newman on 2/3/2016. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ERICA P. SMITH,
Plaintiff,

Case No. 3:15-cv-35

vs.
COMMISSIONER OF
SOCIAL SECURITY,

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

Defendant.

SUPPLEMENTAL REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NONDISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE,
AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER
UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

This Social Security disability benefits appeal is before the Court on objections filed by
both parties (docs. 11, 13) to the undersigned’s Report and Recommendation (doc. 10). Judge
Rice subsequently recommitted this case to the undersigned for a supplemental Report and
Recommendation. Doc. 14. As noted in the undersigned’s initial Report and Recommendation
(doc. 10), the ultimate issue on appeal is whether the Administrative Law Judge (“ALJ”) erred in
finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance Benefits (“DIB”)
and/or Supplemental Security Income (“SSI”).2

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Attached hereto is a NOTICE to the parties regarding objections to this supplemental Report
and Recommendation.
2
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.

I.
The procedural history, evidence of record, standard of review, and the definition of
disability were all set forth in detail in the Report and Recommendation, see doc. 10 at PageID
1507-10, AND ARE incorporated by reference into this Supplemental Report and
Recommendation as if fully rewritten herein.
In her Statement of Errors, Plaintiff argued that the ALJ, inter alia, erred by assessing the
weight accorded to the medical source opinions of record. Doc. 7 at PageID 1333-42. With
regard to medical source opinions, Plaintiff challenged the ALJ’s analysis of opinions given by:
(1) treating psychiatrist Chang Pan, M.D.; (2) examining psychologist Alan R. Boerger, Ph.D.;
and (3) record reviewing psychologists Roseann Umana, Ph.D. and Caroline Lewin, Ph.D. Id.
The undersigned previously found error in the ALJ giving “significant weight” to the opinions of
non-treating psychologists Boerger, Umana, and Lewin; and, based on finding such error,
declined to determine whether the ALJ erred in analyzing Dr. Pan’s findings. Doc. 10 at PageID
1511-12.
A.

Plaintiff’s Objection

Plaintiff objects to the undersigned’s decision to make no finding regarding the ALJ’s
analysis of Dr. Pan’s opinion.

The undersigned finds her objections to the Report and

Recommendation well-taken.
“[T]he Commissioner’s regulations establish a hierarchy of acceptable medical source
opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio
Jan. 30, 2013). Treating physicians like Dr. Pan top the hierarchy. Id. “Next in the hierarchy
are examining physicians and psychologists, who often see and examine claimants only once.”
Id. “[N]on-examining physicians’ opinions are on the lowest rung of the hierarchy of medical

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source opinions.” Id. “The regulations provide progressively more rigorous tests for weighing
opinions as the ties between the source of the opinion and the individual [claimant] become
weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
“An ALJ is required to give controlling weight to ‘a treating source’s opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s)’ if the opinion ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” LaRiccia v. Comm’r of
Soc. Sec., 549 F. App’x 377, 385 (6th Cir. 2013) (citation omitted) (alterations in original). This
requirement is known as the “treating physician” rule. Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 406 (6th Cir. 2009) (citation omitted).
Greater deference is given to treating source opinions “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[.]” 20 C.F.R. § 416.927(c)(2); see also Blakley, 581 F.3d at 406. Thus, an ALJ
must give controlling weight to a treating source if the ALJ finds the treating physician’s opinion
well-supported by medically acceptable evidence and not inconsistent with other substantial
evidence in the record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Closely associated with the treating physician rule is the “good reasons rule,” which
“require[s] the ALJ to always give good reasons in [the] notice of determination or decision for
the weight given to the claimant’s treating source’s opinion.” Blakley, 581 F.3d at 406-07.
“Those good reasons must be ‘supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to

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the treating source’s medical opinion and the reasons for that weight.’” Id. Thus, when the ALJ
declines to give controlling weight to a treating physician’s assessment, “the ALJ must still
determine how much weight is appropriate by considering a number of factors, including the
length of treatment relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion with the record
as a whole, and any specialization of the treating physician.” Id. at 406.
In this case, Dr. Pan found Plaintiff markedly limited3 in two areas of mental functioning
and opined that, as a result of her mental impairments, she would miss about two days of work
per month, and would be distracted for about half of the workday. PageID 1310. The ALJ
declined to give Dr. Pan’s opinion “controlling, or even deferential weight,” and ultimately
found it entitled to “little weight” because:
The psychiatrist consistently reported a Global Assessment of Functioning
(GAF)[4] score of 70, indicative of only mild symptoms, impairment in
Whereas “moderate” functional limitations are “non-disabling,” see Sims v. Comm’r of Soc.
Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” and “extreme” limitations are suggestive of
disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(C) et seq.
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GAF is a tool used by health-care professionals to assess a person’s psychological, social, and
occupational functioning on a hypothetical continuum of mental illness. Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. 2000) (“DSM-IV”). “The most recent (5th) edition of the
Diagnostic and Statistical Manual of Mental Disorders does not include the GAF scale.” Judy v. Colvin,
No. 3:13cv257, 2014 WL 1599562, at *11 (S.D. Ohio Apr. 21, 2014); see also Diagnostic and Statistical
Manual of Mental Disorders 16 (5th ed. 2013) (“DSM-V”) (noting recommendations “that the GAF be
dropped from [DSM-V] for several reasons, including its conceptual lack of clarity . . . and questionable
psychometrics in routine practice”). As set forth in the DSM-IV, however, a GAF of 31-40 indicates
“[s]ome impairment in reality testing or communication,” or “major impairment in several areas, such as
work or school, family relations, judgment, thinking or mood (e.g.,…avoids friends, neglects family, and
is unable to work).” DSM-IV at 34. A GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. A GAF score of 51-60 is
indicative of “[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. A GAF score of 61 to 70 indicates “[s]ome mild symptoms (e.g., depressed
mood and mild insomnia)” or “some difficulty in social, occupational, or school functioning . . . but
generally functioning pretty well.” Id. A GAF score of 71 to 80 indicates “no more than slight
impairment in social, occupational, or school functioning (e.g., temporarily falling behind in
schoolwork).” Id.
3

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functioning, or both, upon discharge from the hospital. He further
reported that the claimant had a history of poor compliance with treatment.
In his response to the attorney-generated questionnaire, Dr. Pan reported a
GAF score of 55-60, which would be indicative of moderate symptoms,
moderate impairment in functioning or both, which was inconsistent with
his conclusion that the claimant’s psychiatric symptoms were of Listing
level severity.
PageID 66. Essentially, the ALJ gave “little weight” to Dr. Pan’s opinion because he found it at
odds with: (1) Plaintiff’s GAF scores of 70; and (2) her poor compliance with mental health
treatment. Id. The undersigned finds error in the ALJ’s reliance on these two factors.
First, with regard to GAF scores, it is improper for an “ALJ [to] use[ ] unqualified data,
provided by [a] professional as a macroscopic evaluation, to disprove the professional’s more
detailed, expert functional assessment.” Smith v. Astrue, 565 F.Supp.2d 918, 925 (M.D. Tenn.
2008); see also Cornelison v. Astrue, No. ED CV 11–440–PLA, 2011 WL 6001698, at *8 (C.D.
Cal. Nov. 30, 2011); cf. Ott v. Comm’r of Soc. Sec., No. 1:08–CV–00399, 2009 WL 3199064, at
*9 (S.D. Ohio Sept. 29, 2009). As a result, this Court has held that a “GAF score, alone, cannot
discredit [a treating’s physician’s] assessment of Plaintiff’s limitations[.]” Mosley v. Comm’r of
Soc. Sec., No. 3:14-cv-278, 2015 WL 6857852, at *5 (S.D. Ohio Sept. 14, 2015).
Further, the ALJ’s focus on Plaintiff’s GAF scores at discharge from medical care fails to
acknowledge that Dr. Pan assessed GAF scores of 30 on numerous occasions. See PageID 531,
543, 549, 556, 560, 791, 1050. A GAF of 30 “reflects a person whose behavior is ‘considerably
influenced by delusions or hallucinations,’ or ‘serious impairment in communication or
judgment,’ or ‘inability to function in almost all areas.’” Marshall v. Astrue, No. CIV.A. 08181-GWU, 2009 WL 902431, at *6 (E.D. Ky. Mar. 31, 2009); see also Jensen v. Comm’r of Soc.
Sec., No. 1:12-CV-737, 2014 WL 1328160, at *4 (W.D. Mich. Mar. 28, 2014). An “ALJ must
consider all the record evidence and cannot ‘pick and choose only the evidence that supports his

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[or her] position.” Hawthorne v. Comm’r of Soc. Sec., No. 3:13–cv–179, 2014 WL 1668477, at
*11 (S.D. Ohio Apr. 25, 2014) (citing Loza v. Apfel, 219 F.3d 378, 393 (5th Cir.2000)). Based
on the foregoing, the undersigned finds the ALJ’s reliance on selected GAF scores does not
provide a “good reason” for giving little weight to Dr. Pan’s opinion.
Second, absent more specific explanation by the ALJ, it is not clear to the undersigned
why Plaintiff’s “history of poor compliance with treatment” undermines Dr. Pan’s specific
opinion concerning Plaintiff’s mental RFC. PageID 66. The Sixth Circuit has stated that “ALJs
must be careful not to assume that a patient’s failure to receive mental-health treatment
evidences a tranquil mental state” because “[f]or some mental disorders, the very failure to seek
treatment is simply another symptom of the disorder itself.” White v. Comm’r of Soc. Sec., 572
F.3d 272, 283 (6th Cir. 2009). Absent any further explanation by the ALJ, the undersigned finds
that Plaintiff’s poor compliance with mental health treatment does not provide a good reason for
giving little weight to Dr. Pan’s opinion. See Russell v. Comm’r of Soc. Sec., 14 F. Supp. 3d 921,
929 (S.D. Ohio 2014).
Accordingly, the undersigned recommends reversal of the ALJ’s non-disability finding.
B.

The Commissioner’s Objection

The Commissioner objects to the Report and Recommendation insofar as the undersigned
previously found that, in setting forth the weight accorded to the opinions of the three nontreating psychologists -- i.e., Drs. Boerger, Umana, and Lewin -- the ALJ cited no evidence of
record. Doc. 10 at PageID 1512. The Commissioner, in her objection, correctly points out that
the ALJ did cite certain findings as support for the RFC determination at a subsequent part of his
decision -- namely, findings by Dr. Boerger that, during a one-time examination, Plaintiff
“recalled eight random digits forward and three in reverse, but was unable to perform ‘serial

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7s.’” PageID 67. However, the Commissioner’s correct contention in this regard does not
impact the undersigned’s conclusion that the ALJ’s non-disability is unsupported by substantial
evidence and should be reversed.
Notably, although Dr. Boerger provided no opinion concerning Plaintiff’s specific work
limitations, see PageID 566-72, Drs. Umana and Lewin reviewed Dr. Boerger’s findings and
concluded that Plaintiff could perform routine, repetitive tasks and have occasional, superficial
interactions with others. PageID 120, 122, 140, 163. Thus, ultimately, the ALJ’s RFC finding is
based upon giving “significant weight” to the opinions non-treating, non-examining
psychologists Umana and Lewin. See id.; see also PageID 65.
As found by the undersigned in the Report and Recommendation, Dr. Boerger’s report
(dated March 8, 2012) and the opinions of Drs. Umana and Lewin (dated March 20, 2012 and
September 20, 2012, respectively) all predate numerous treatment records in evidence. See
PageID 1311-42, 1440-65. They also predate Dr. Pan’s opinion. See PageID 1308-10. The
Commissioner did not object to the undersigned’s conclusion in this regard. “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,’” an ALJ must
generally indicate “that [he or she] 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 v.
Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (citing Blakley v. Comm’r of Soc.
Sec., 581 F.3d 399, 409 (6th Cir. 2009); Fisk v. Astrue, 253 F. App’x 580, 585 (6th Cir. 2007)).
Here, the ALJ’s decision is devoid of any consideration of treatment records contained in
Exhibit 43F from July 30, 2012 to June 5, 2013, see PageID 1311-42; or Exhibit 50F regarding
impatient mental health treatment from March 7, 2013 to March 11, 2013, see PageID 1440-65.

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This error, in addition to the ALJ’s error in assessing the opinion of Dr. Pan, results in the ALJ’s
non-disability finding being unsupported by substantial evidence.
C.

Remand

When the ALJ’s non-disability determination is unsupported by substantial evidence, the
Court must determine whether to remand the matter for rehearing or to award benefits.
Generally, benefits may be awarded immediately “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). The Court may only award benefits where proof of disability
is strong and opposing evidence is lacking in substance, so that remand would merely involve the
presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17
F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Mowery v. Heckler,
771 F.2d 966, 973 (6th Cir. 1985).
Here, although a significant argument could be made that Dr. Pan’s disabling opinion
should be given deferential, if not controlling weight, the undersigned finds evidence of
disability is not overwhelming. Accordingly, the undersigned concludes that remand for further
proceedings is proper so that the ALJ can properly assess all opinion evidence of record and
determine Plaintiff’s RFC anew. To that end, the undersigned recommends that a medical expert
be utilized in order to accurately assess the entire medical record.
II.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s nondisability finding be found unsupported by substantial evidence, and REVERSED; (2) this

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matter be REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g)
for proceedings consistent with this opinion; and (3) this case be CLOSED.

Date:

February 3, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation 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.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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