Mershad v. Commissioner Social Security

Filing 13

REPORT AND RECOMMENDATIONS: (1) The Commissioner's non-disability finding be VACATED; (2) Plaintiff Joseph F. Mershad's application for disability insurance benefits be REMANDED to the Social Security Administration for an immediate AWARD of benefits beginning January 1, 2011; and (3) This case be CLOSED on the docket of the Court. Objections to R&R due by 3/7/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 2/18/2016. (cvf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOSEPH F. MERSHAD,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

: Case No. 3:15-cv-81
:
: 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. 7), the Commissioner’s memorandum in opposition (Doc. 10),
Plaintiff’s reply (Doc. 12), the administrative record (Doc. 5), 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 a period of disability and disability insurance
benefits (“DIB”). (See Doc. 5, PageID ## 45-54 (the “ALJ’s decision”)).
I. INTRODUCTION
Plaintiff Joseph F. Mershad protectively filed an application for DIB on June 27,
2012, alleging disability beginning on January 1, 2011. (Doc. 5, PageID # 236). Plaintiff
stated he was unable to work due to irritable bowel syndrome (“IBS”). (Id. at 249). His
claim was denied initially and on reconsideration. (Id. at 45).
1

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

Plaintiff requested a hearing before an ALJ, which was held on September 16,
2013. (Id. at 45). Plaintiff and a vocational expert (“VE”) testified, with Plaintiff’s
counsel in attendance. (Id.)
On October 8, 2013, ALJ George Michael Gaffaney 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 and DIB. (Id. at 54).
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) 2 to perform
sedentary work with certain limitations. (Id. at 49). Based on Plaintiff’s age, education,
work experience, and RFC, the ALJ found that there were a significant number of jobs in
the national economy that Plaintiff could perform. (Id. at 53). Therefore, the ALJ
concluded that Plaintiff was not disabled. (Id. at 54).
The decision became final and appealable on January 12, 2015, when the Appeals
Council denied Plaintiff’s request for review. (Id. at 34-38). Plaintiff then properly
commenced this action in federal court for judicial review of the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Plaintiff was 42 years old. (Doc. 5, PageID ## 53,
188). He had completed high school and attended 2 years of college. (Id. at 250).
Plaintiff did not have any specialized job training, nor had he completed a trade or
vocation school. (Id.) The ALJ found that Plaintiff had past relevant work as an
associate, assistant manager, manager, and data entry worker, but determined that
2

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

Plaintiff is precluded from returning to any of his past positions due to his limitations. 3
(Id. at 52).
The ALJ’s “Findings,” which represent the rationale of his decision, are as
follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.

2.

The claimant engaged in substantial gainful activity during the
following periods: January 2011 to June 2012 (20 CFR 404.1520(b)
and 404.1571 et seq.).

3.

There has been a continuous 12-month period(s) during which the
claimant did not engage in substantial gainful activity. The
remaining findings address the period(s) the claimant did not engage
in substantial gainful activity.

4.

The claimant has the following severe impairments: irritable bowel
syndrome (“IBS”), depression, and anxiety (20 CFR 404.1520(c)).

5.

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).

6.

The claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) where the
claimant lifts or carries 10 pounds occasionally and 5 pounds
frequently. The claimant can stand or walk for two of eight hours
during the workday. The claimant can sit for six of eight hours
during the workday. The claimant’s work is limited to simple,
routine tasks (unskilled). The claimant can only occasionally adapt
to changes in work setting. The claimant can only occasionally
interact with the public.

3

Pursuant to 20 C.F.R. § 404.1560(b)(1), “past relevant work” is defined as “work that [the
claimant] ha[s] done within the past 15 years, that was substantial gainful activity, and that lasted
long enough for [the claimant] to learn to do it.”

3

7.

The claimant is unable to perform any past relevant work (20 CFR
404.1565).

8.

The claimant was born [i]n … 1971, and was 39 years old, which is
defined as a younger individual age 18-44, on the alleged disability
onset date (20 CFR 404.1563).

9.

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

10.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).

11.

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)).

12.

The claimant has not been under a disability, as defined in the Social
Security Act, from January 1, 2011, through the date of [the ALJ’s]
decision (20 CFR 404.1520(g)).

(Doc. 5, PageID ## 46-54). In sum, the ALJ concluded that Plaintiff was not under a
disability as defined by the Social Security Act and was therefore not entitled to a period
of disability and DIB. (Id. at 54).
On appeal, Plaintiff argues that: (1) the ALJ failed to give proper weight to the
opinions of his treating physicians; (2) the ALJ failed to make any credibility assessments
about Plaintiff’s testimony and ignored the severity of symptoms as Plaintiff described
them; and (3) the ALJ failed to consider the non-exertional limitations resulting from
Plaintiff’s IBS when he created an RFC for sedentary work. (Doc. 7).

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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).

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III. BACKGROUND
The relevant facts, as reflected in the record, are as follow: 4
A. Relevant Medical Evidence
1. Physical Impairments
a. John E. Mauer, M.D.
Plaintiff began treating with primary care physician, John E. Mauer, M.D. on
August 14, 2012. (Doc. 5, PageID ## 454-59). Dr. Mauer noted Plaintiff suffers from
multifactorial depression. (Id. at 455). He further noted that Plaintiff had a serious motor
vehicle accident with apparently a closed head injury when he was age 17, which has
significantly affected his cognitive function. (Id.) Dr. Mauer wrote that Plaintiff has
tried as many as ten or eleven types of medication for depression, but has only been able
to tolerate one. (Id.) Dr. Mauer noted his intent to keep Plaintiff on the one medication
he is able to tolerate and refer him to a psychiatrist. (Id.) Plaintiff reported chronic
abdominal pain in the epigastric area with nausea, vomiting, and loose stools since his
gallbladder surgery. (Id.) Plaintiff also had dysuria and urgency issues. (Id.) Plaintiff
continued seeing Dr. Mauer for follow-up appointments throughout 2012 and 2013. (Id.
at 390-459; 524-633).
On September 13, 2013, Dr. Mauer completed a functional capacity evaluation in
which he opined that Plaintiff suffered from a chronic moderately severe abdominal pain,

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.

6

nausea with dry heaves once a week and loose stools five times a day, up to sixteen times
a day. (Id. at 643). Dr. Mauer opined that Plaintiff would not be able to get through an
eight-hour work day without lying down, even with the benefit of normal breaks. (Id. at
647). Further, he noted that Plaintiff would be absent three or more days of work per
month, but specified that the majority of the impairments that would preclude Plaintiff
from engaging in gainful employment are “psych related.” (Id. at 649).
b. Diklar Makola, M.D.
Gastroenterologist, Diklar Makola, M.D., saw Plaintiff, by referral, on November
29, 2011, December 15, 2011, and June 14, 2012. (Doc. 5, PageID ## 377-83). On
November 29, 2011, Plaintiff reported a history of abdominal pain and diarrhea, which
had been getting progressively worse since his gallbladder removal surgery. (Id. at 38283). He reported abdominal cramping, and it is noted that the diarrhea typically occurs
multiple times per day and after meals. (Id. at 382). Dr. Makola noted that Plaintiff also
had heartburn, cough, wheezing, back pain, insomnia, and depression. (Id.) Further, it is
noted that Plaintiff neither smokes, nor drinks alcohol. (Id.) Dr. Makola opined that
Plaintiff’s “diarrhea is likely multi-factorial including irritable bowel syndrome and postcholecystectomy and diarrhea.” (Id. at 383). Dr. Makola also noted that Plaintiff had
hemorrhoids but was asymptomatic at that time. (Id.) Dr. Makola prescribed medication,
sent Plaintiff for a stool study, and scheduled a follow-up for two weeks after he obtained
medical records from Plaintiff’s specialists. (Id.)
At his follow-up appointment on December 15, 2011, Dr. Makola noted that
Plaintiff’s tests were negative for infection. (Id. at 381). Plaintiff reported that “his
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bowel movements ha[d] become somewhat more formed,” from the medication. (Id.)
However, he was still experiencing abdominal cramping with gas and bloating. (Id.)
Plaintiff was diagnosed with post- cholecystectomy diarrhea and IBS with diarrhea. (Id.)
Dr. Makola increased Plaintiff’s medication and scheduled him for a follow-up
appointment in six months. (Id.)
On June 14, 2012, Plaintiff had his six-month follow-up appointment with Dr.
Makola. (Id. at 377-80). Dr. Makola noted that Plaintiff was experiencing “significant
anxiety and panic attacks.” (Id. at 377). Dr. Makola also noted that:
[Plaintiff’s] diarrhea does improve with [medication] taken once a day.
However, occasionally when the diarrhea does not improve, he needs to
take a second dose but invariably when he takes the second dose, this
causes nausea and vomiting. On days when symptoms are not well
controlled, he has about five to six bowel movements a day. These occur
mainly during the day. The diarrheal symptoms are associated with
bloating and cramping in the lower abdomen. The symptoms are helped
significantly by Librium, which he takes daily up to four times a day and
has been taking for the past 1 ½ years. I did also prescribe him some
Donnatal which helps his symptoms. He takes this about four times a
week. However, he is concerned about the sedating effects.
(Id.)
Dr. Makola’s notes also indicate that Plaintiff’s vision had deteriorated, which he
blamed on the medication. (Id.) Moreover, the notes indicate that Plaintiff had lost
twelve pounds since his prior appointment (i.e., from 190.5 pounds to 178.5 pounds in six
months). (Compare id. at 377, with id. at 381). Dr. Makola adjusted Plaintiff’s
medications and recommended he follow-up in six months. (Id. at 377-78).

8

c. Maria Congbalay, M.D./Bradley Lewis, M.D.
On October 15, 2012, state agency physician, Maria Congbalay, M.D., reviewed
the medical evidence and completed an evaluation regarding Plaintiff's physical
impairments. (Doc. 5, PageID # 100). Specifically, Dr. Congbalay opined that Plaintiff
could: lift/carry fifty pounds occasionally and twenty five pounds frequently; stand/walk
for six hours out of eight and sit for six hours out of eight; frequently climb ramps/stairs,
stoop or crawl; and only occasionally climb ladders, ropes, or scaffolds. (Id. at 100-01).
Dr. Congbalay found Plaintiff is fully credible, noting that his statements regarding IBS
are consistent with the findings. (Id.)
On January 5, 2013, state agency physician, Dr. Lewis reviewed the medical
evidence upon reconsideration and affirmed Dr. Congbalay’s assessment. (Id. at 112-14).
2. Mental Impairments
a. Jack C. Lunderman, Jr., M.D.
Psychiatrist, Jack C. Lunderman, Jr., M.D., began seeing Plaintiff on October 22,
2012. (Doc. 5, PageID ## 466-70, 640). Plaintiff reported insomnia, loss of appetite,
poor memory, and lower concentration. (Id. at 469-70). Thereafter, Plaintiff saw Dr.
Lunderman approximately once every two months, unless his symptoms necessitated
more frequent appointments. (Id. at 640).
In January 2013, Plaintiff reported that he was depressed over losing his job;
however, notes from the following week evidence significant improvement. (Id. at 46364). In February 2013, Dr. Lunderman noted that Plaintiff’s mood was improving and

9

his Global Assessment of Functioning (“GAF”) score was noted to be “80+” at the time. 5
(Id. at 462). In March 2013, Plaintiff had no suicidal ideation, a normal appetite, normal
concentration, a stable mood, and stable thoughts. (Id. at 461). Dr. Lunderman
concluded that Plaintiff was doing well overall and was in stable condition. (Id.) In June
2013, Plaintiff was experiencing some depression and anxiety, and was also having
trouble sleeping. (Id. at 460).
On September 11, 2013, Dr. Lunderman completed a mental residual functional
capacity assessment (“MRFC Form”) in which he listed Plaintiff’s diagnoses as a panic
disorder and depressive disorder. (Id. at 640-42). Specifically, Dr. Lunderman noted
that:
[Plaintiff] suffers disease process in 2 body systems, each negatively
impacting the other (irritable bowel and depression/anxiety/panic). His
anxiety and panic symptoms can be intensified by the physical discomfort
of his IBS which cause him a sense of urgency and frequency of use of the
bathroom.
These symptoms can present on an intermittent and
unpredictable basis thus negatively impacting his ability to function
predictably in the workplace setting.
(Id. at 640). Further, Dr. Lunderman opined that Plaintiff was markedly limited in the
ability to perform activities within a schedule, maintain regular attendance and be
5

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, with a lower score indicating
greater symptom severity and difficulty functioning. Id.
A GAF score of 71 to 80 indicates: “If symptoms are present, they are transient and expectable
reactions to psychosocial stressors (e.g., difficulty concentrating after family argument), no more
than slight impairment in social, occupational, or school functioning (e.g., temporarily falling
behind in schoolwork).” Id.

10

punctual within customary tolerances. (Id. at 641). Dr. Lunderman also opined that
Plaintiff would likely be absent three or more times a month, but specifically noted that
this is true “if/as symptoms exacerbate.” (Id.)
Dr. Lunderman also indicated on the MRFC form that there was no evidence of
limitations with regard to Plaintiff’s ability to: understand and remember locations and
work-like procedures; understand and remember very short and simple instructions; carry
out very short and simple instructions; sustain an ordinary routine without special
supervision; follow work rules; and be aware of hazards and take appropriate precautions.
(Id. at 641-42). However, Dr. Lunderman opined that Plaintiff had “some evidence of
limitations” as to his ability to: understand and remember detailed instructions; carry out
detailed instructions; maintain attention and concentration for extended periods; and set
realistic goals or make plans independently of others. (Id.) Finally, he noted moderate to
marked limitations, depending on the level of impact from the IBS, in Plaintiff’s ability
to: perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; and travel to unfamiliar places or use public transportation.
(Id.) Dr. Lunderman also noted that the unpredictability of Plaintiff’s symptoms
negatively impact his social life and interpersonal relationships. (Id. at 642).
b. Caroline Lewin, Ph.D./Frank Orosz, Ph.D.
Non-examining state agency psychologist, Caroline Lewin, Ph.D., conducted an
initial review of the record on September 14, 2012, at the request of the state agency.
(Doc. 5, PageID ## 98-99). Dr. Lewin determined that Plaintiff had mild restrictions in
activities of daily living, mild difficulties maintaining social functioning and no
11

difficulties in maintaining concentration, persistence or pace; with no episodes of
decompensation. (Id. at 98). Dr. Lewin concluded,
[Plaintiff] reports some anxiety issues but not sure of reason. Tends to
come and go. Has not had any issues with working, would take a break and
was often able to return to his duties after taking a librium and relaxing for
about 15 minutes. Has been referred to counselor to get to root of issue.
Checked to see if Xanax would be beneficial but doesn’t feel it is necessary
as he is already on enough sedatives from his IBS. Currently non-severe.
(Id. at 99).
On January 5, 2013, state agency psychologist, Frank Orosz, Ph.D., reviewed the
medical evidence upon reconsideration and determined that Plaintiff had moderate
restrictions in activities of daily living, moderate difficulties maintaining social
functioning and in maintaining concentration, persistence or pace, and no episodes of
decompensation. (Id. at 111). Dr. Orosz opined that Plaintiff’s work should be limited to
simple, routine tasks, and a workplace without strict daily quota requirements. (Id. at
116).
B. The Administrative Hearing
1. Plaintiff’s Testimony
Plaintiff testified that he lives alone, as he has been for at least the last two years.
(Doc. 5, PageID # 65). He testified that he was living off of his savings, as his only
source of income was from working approximately fifteen hours per month as a
bookkeeper for his mother’s business, earning $8.50 per hour. (Id.) Plaintiff also stated
that he was last employed by UPS, but he was terminated in September 2012 for being
too slow on the job. (Id. at 65-66). Plaintiff testified that the reason he was slow was
12

because of he frequently had to stop to use the restroom. (Id. at 67). He also stated that
he gets very tired from constantly using the restroom and that he takes two naps a day.
(Id.) Plaintiff testified that his bowel problems began after his gallbladder removal in
January 2011, which he believed would actually relieve his IBS symptoms. (Id. at 68).
Plaintiff explained that he experiences high bowel movement frequency and that
some days are better than others. (Id.) Plaintiff indicated that he has two or three bad
days every week, on which days he will use the restroom up to fifteen or sixteen times,
for ten to fifteen minutes at a time. (Id.) Plaintiff testified that his bad days have gotten
significantly worse, and that in June 2012, a bad day only consisted of five to six trips to
the restroom per day. (Id. at 69). However, now Plaintiff stated that on a good day he
uses the restroom five times, again for ten to fifteen minutes at a time. (Id.) Plaintiff
further testified that he takes medication (Welchol on bad days and Cholestyramine on
very bad days), but the medication makes him nauseous. (Id.)
Plaintiff reported that his condition affects his ability to live on a day-to-day basis.
(Id. at 70). For example, Plaintiff testified that he can drive, but he always brings a
blanket, a bucket, and an extra set of clothes, because he does not know “when it’s going
to hit.” (Id.) Further, he stated that his frequent restroom use interferes with his ability to
work on full-time basis, even in his current position working for his mother. (Id. at 71).
Plaintiff testified that when he leaves the house, such as the day of the administrative
hearing, he takes extra Welchol, which helps the restroom urgency and settles his
stomach, but also makes him very drowsy and lightheaded. (Id.) Plaintiff also limits his
meals so that he is only eats one meal per day when he gets home in the evening. (Id.)
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Plaintiff explained that his mother makes his meals for the week and she sends them
home with him every Sunday after he does the bookkeeping. (Id. at 71-72). He testified
that his limited food intake contributes to his weakness and drowsiness throughout the
day. (Id.) However, eating more to keep his energy up would also increase his restroom
frequency. (Id. at 73).
Plaintiff testified that when he goes to work for his mother, there is a bathroom
very close by, and his bathroom is no more than five feet away from his bedroom when
he is at home. (Id. at 72). Regardless, Plaintiff admits that he has had accidents in the
past, even in that short distance. (Id.) He stated that when he feels the urge to go to the
restroom, he may have as little as five to ten seconds to make it before having an
accident. (Id. at 72-73). Plaintiff testified that he would not be able to go to work at a
regular workplace if he were having a bad IBS day. (Id. at 73). Further, Plaintiff
testified that working would be a challenge because he might be too far from a restroom,
and also because movement often brings on more frequent bowel movements. (Id. at 7475). Plaintiff stated that he is even uncomfortable using the restroom at his mother’s
home, due to frequency and potential for accidents. (Id. at 75). He testified that he has
had to clean up accident-related messes in the past. (Id. at 75-76).
Plaintiff does not do his own house work, but does some yard work and also does
his laundry. (Id. at 76). He stated that he feels abdominal pain, which may occur as
frequently as every fifteen minutes, causing him to stop and lie down. (Id.) The breaks
from abdominal pain are in addition to the two, one to two hour naps that Plaintiff takes
every day. (Id. at 76-77). Plaintiff states that he would not be able to get through the day
14

without taking these breaks and naps. (Id.) Also, Plaintiff experiences a “lightning bolt”
of pain in his rectum, every few minutes, which hits suddenly and then goes away
immediately. (Id. at 78).
Plaintiff testified that his IBS has limited his social life, as he is largely unable to
go out. (Id. at 77-78). If he does go out, Plaintiff states it is only with his parents, as he
is more comfortable with them being aware of his struggle. (Id.) Plaintiff also testified
that he had suffered from depression and anxiety for years, and that his IBS has “greatly”
aggravated those issues. (Id. at 79). He stated that his IBS has prevented him from
interacting or being with other people, because he is anxious and worried about having an
accident in front of his friends. (Id.) Plaintiff stated that his condition has caused him
concern regarding how others perceive him, and he feels bad about himself. (Id.)
Plaintiff stated that his medications cause drowsiness and dizziness which make it
harder for him to do any activities. (Id. at 80). He often takes his mother’s bookkeeping
work home with him. (Id. at 80-81). However, he still has trouble focusing on tasks due
to discomfort. (Id.) Plaintiff estimates that he can work for about an hour at a time, but
loses approximately half of it distracted by pain, discomfort, and trips to the restroom.
(Id. at 81). Further, Plaintiff states he is unable to sit for more than an hour because of
his hemorrhoids. (Id.)
2. The VE’s Testimony
Vocational expert (“VE”), Cherise Powell, testified and responded to
hypotheticals posed by both the ALJ and Plaintiff’s counsel. (Doc. 5, PageID ## 85-90).

15

In response to the ALJ’s hypothetical, the VE testified that there were jobs in the
national and regional economy, which could be performed by an individual of Plaintiff’s
age, education, and work experience, who is limited to simple, routine tasks with only
occasional changes in routine work setting, only occasional interaction with the public,
lifting no more than ten pounds occasionally and five pounds frequently, and standing for
two hours and sitting for six hours during an eight-hour work day. (Id. at 87-88).
However, when the ALJ modified the hypothetical to include four unscheduled rest
breaks of fifteen minutes each, the VE testified that the additional breaks would preclude
performance of any job on a full time competitive basis. (Id. at 88).
When examined by Plaintiff’s counsel, the VE testified that none of the jobs could
be performed if the individual also needed the “freedom to lay down as needed.” (Id. at
89). Additionally, there would be no jobs available if the individual needed to be off
three or more days per month or, alternatively, if he were off-task more than 10% of the
day. (Id.) However, the jobs would still be available if the individual needed to be no
more than ten to fifteen seconds away from a restroom. (Id. at 89-90).
C. The ALJ’s Decision
The ALJ found that Plaintiff’s severe impairments included IBS, depression, and
anxiety, but noted that “the record indicates that these impairments all stabilized with
treatment.” (Doc. 5, PageID ## 47, 49).
In weighing the medical source opinions, the ALJ assigned “some” weight to the
opinions of the state agency reviewers, Drs. Congbalay and Lewis. (Id. at 51). The ALJ
gave Dr. Mauer’s opinion “little to no weight.” (Id.) With regard to mental impairments,
16

the ALJ gave “great” weight to the findings of state agency reviewing psychologist, Dr.
Orosz, but “little to no weight” to Dr. Lewin. (Id. at 51-52). Further, the ALJ gave “little
to no weight” to treating psychiatrist, Dr. Lunderman. (Id. at 52).
IV. ANALYSIS
A. The ALJ’s Assignment of Weight to Plaintiff’s Treating Source
Plaintiff first argues that the ALJ failed to adhere to the Social Security
Administration’s (“SSA”) regulatory mandates for weighing treating source opinions.
(Doc. 7 at 11-14). More specifically, Plaintiff asserts that the ALJ improperly focused on
isolated pieces of the record as a basis for discrediting the treating sources. (Id. at 12).
“Regardless of its source, [an ALJ must] evaluate every medical opinion,” in order
to determine whether a claimant is disabled. 20 C.F.R. § 404.1527(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 source’s opinion be given “controlling weight” as long
as it is: (1) “well-supported” by objective evidence; and (2) “not inconsistent with the
other substantial evidence.” 20 C.F.R. § 404.1527(c)(2). Treating source opinions are
generally given greater weight because treating physicians are more likely “to provide a
detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.” Id. On that note, the opinions of non-treating
and, certainly, non-examining sources are typically entitled to less weight. Id.
17

“On the other hand … ‘[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
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 § 404.1527(c) factors, the ALJ rejects the opinion of
a treating physician, he 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
18

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).
Here, Plaintiff alleges that the ALJ rejected the opinions of treating sources,
psychiatrist Jack C. Lunderman, Jr., M.D., and primary care physician John E. Mauer,
M.D. (Doc. 7 at 13). As to Dr. Lunderman, the ALJ’s decision states that:
Treating psychiatrist Dr. Jack Lunderman M.D. opined that the claimant
will miss three or [more] days a month due to [his] IBS symptoms, but
mainly has no or mild mental health limitations (Exhibit 13F). Dr.
Lunderman is an acceptable, treating source, but his opinion is not
persuasive. Similarly to Dr. Mauer, Dr. Lunderman’s opinion is based on
the claimant’s IBS, but he is a psychiatrist and not a gastroenterologist
(Exhibit 13F). His own treatment notes indicated the claimant is in stable
condition and generally doing well (Exhibit 8F/2). He does not have any
indication in his treatment notes that the claimant’s IBS will prevent the
claimant from working (Exhibit 8F). Therefore, his opinion is granted little
to no weight.
(Doc. 5, PageID # 52).
First, the ALJ’s noted inconsistencies in Dr. Lunderman’s opinion appear
disingenuous. The ALJ states that Dr. Lunderman “does not have any indication in his
treatment notes that [Plaintiff’s] IBS will prevent the claimant from working.” (Id.)
However, there is no reason for this Court, or the ALJ, to assume that Plaintiff was seeing
Dr. Lunderman for the purpose of padding the administrative record. The more logical
conclusion (and indeed the proper conclusion) is that Plaintiff was seeking medical
19

treatment from Dr. Lunderman. Therefore, there would be little reason for the treatment
notes to reflect Plaintiff’s inability to work. Second, the fact that the treatment notes
often reflect that Plaintiff’s psychological symptoms were mild at that time does not
undermine Dr. Lunderman’s more focused opinion, which states that the sudden and
unpredictable nature of Plaintiff’s symptoms make it difficult for him to maintain a
regular work schedule, focus on tasks, interact with co-workers, etc. In short, the ALJ’s
rationale for concluding that Dr. Lunderman’s opinion is not entitled to controlling
weight is insufficient.
Further, the ALJ discredits Dr. Lunderman’s opinion, because it is “based on
[Plaintiff’s] IBS,” and Dr. Lunderman is not a gastroenterologist. (Id.) However, this
statement misrepresents Dr. Lunderman’s assessment. While Dr. Lunderman’s opinion is
indeed based upon Plaintiff’s IBS, it focuses squarely on the depression, anxiety, and
panic that Plaintiff suffers due to the unpredictable symptoms associated with his IBS.
(Id. at 640-42). It bears reiterating Dr. Lunderman’s opinion that:
[Plaintiff] suffers disease process in 2 body systems, each negatively
impacting the other (irritable bowel and depression/anxiety/panic). His
anxiety and panic symptoms can be intensified by the physical discomfort
of his IBS which cause him a sense of urgency and frequency of use of the
bathroom.
These symptoms can present on an intermittent and
unpredictable basis thus negatively impacting his ability to function
predictably in the workplace setting.
(Id. at 640). In other words, Dr. Lunderman opines that the physical discomfort and
unpredictable nature of Plaintiff’s physical impairment (i.e., IBS) exacerbates his anxiety
and panic symptoms, which anxiety, in turn, only worsens his IBS symptoms. As a
psychiatrist and a medical doctor, Dr. Lunderman is more than qualified to offer such an
20

opinion. Thus, the ALJ’s focus on the fact that Dr. Lunderman is not a gastroenterologist
is erroneous.
Next, as to Plaintiff’s treating physician, John Mauer, M.D., the ALJ’s decision
notes as follows:
Treating physician Dr. John Mauer M.D. opined that the claimant could do
eight hours of work, but will miss three or more days of work per month
(Exhibit 14F). Dr. Mauer is an acceptable, treating source, but his opinion
is not persuasive. Dr. Mauer’s conclusion that the claimant will miss three
days of work per month is inconsistent with the conclusion of
gastrointestinal specialist Dr. Makola (Exhibit 5F/6). She found that the
claimant’s IBS is mostly controlled with medication (Exhibit 5F/6). Dr.
Mauer bases his entire opinion on the claimant’s IBS, yet he is not a
gastroenterologist (Exhibit 14F). His opinion is otherwise unsupported, as
he does not attach any records to support his analysis (Exhibit 14F). Also,
the record indicates that he has a limited treating relationship with the
claimant (Exhibit 7F, Exhibit 11F). For those reasons, his opinion is
granted little to no weight.
(Doc. 5, PageID # 52).
First, the ALJ states that Dr. Mauer’s conclusion that Plaintiff will miss three days
of work per month is inconsistent with Dr. Makola’s opinion that Plaintiff’s IBS is
mostly controlled with medication. This Court fails to see the inconsistency. Notably,
Dr. Makola’s opinion is that Plaintiff’s IBS is mostly controlled with medication. (See
id. at 377). However, in light of the fact that the symptoms are not entirely controlled,
there is no inherent inconsistency in saying that Plaintiff may still miss three days of
work per month. Moreover, the ALJ fails to consider that the medication—which does
not control Plaintiff’s IBS symptoms entirely—also causes serious side effects, such as
nausea, vomiting, drowsiness, etc. (Id.) Accordingly, the ALJ’s rationale for not

21

affording Dr. Mauer’s opinion controlling weight, due to alleged inconsistency, is
without merit.
Second, just as with Dr. Lunderman, the ALJ next focuses on Dr. Mauer’s area of
medical specialty. While specialization is certainly a consideration pursuant to 20 C.F.R.
§ 404.1527(c), in the instant case, the ALJ placed far too much significance on that one
factor. In short, it was improper for the ALJ to discredit the opinion of a licensed
medical doctor and treating source, with regard to a standard medical issue, solely
because he is not a specialist. 6
The ALJ failed to provide sufficient reason for not affording Plaintiff’s treating
sources, Drs. Lunderman and Mauer, controlling weight. Moreover, the ALJ erred in
further discrediting the treating source opinions by improperly focusing on their areas of
medical specialization. As the ALJ failed to properly weigh Plaintiff’s treating source
opinions, as required under the SSA’s regulations, the decision should be reversed.
B. The ALJ’s Credibility Assessment
Next, Plaintiff argues that the ALJ ignored Plaintiff’s allegations regarding the
severity of his symptoms and, further, failed to make any credibility assessment regarding
Plaintiff’s testimony.
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). Subjective complaints
6

If such scrutiny were appropriate, then the opinion of every primary care physicians would
essentially be rendered worthless.

22

may “support a claim for disability, if there is also objective medical evidence of an
underlying medical condition in the record.” Id. at 475-76.
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).
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.” SSR 96-7p, 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
23

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 appears to rely occasionally on Plaintiff’s testimony throughout the
decision, largely in finding that Plaintiff was moderately impaired in his ability to engage
in activities of daily living, as well as social functioning. (Doc. 5, PageID # 48).
However, such findings fall short of the severity to which Plaintiff testified. Moreover,
in other instances, the ALJ plainly discredits Plaintiff’s testimony.
For example, Plaintiff’s previous employer supplied a letter explaining that
Plaintiff was terminated from his position for being “slow,” which Plaintiff testified was
due to his frequent need to take restroom breaks. (Id. at 66-67). However, the ALJ gave
no weight to the employer’s letter, stating in a footnote that “there is no indication [what]
his assessment means or how it relates to the claimant’s ability to perform all jobs.” 7 (Id.
at 52, n.3). The implication here is that the ALJ discredited Plaintiff’s testimony
7

The Court also notes that the ALJ’s statement that the letter “cannot be granted any weight,”
because Plaintiff’s former employer is not an “acceptable medical source,” is inaccurate. See
Soc. Sec. Rul. 06-03p, 2006 WL 2329939 (“Consistent with 20 CFR 404.1513(d)(4) and
416.913(d)(4), we also consider evidence provided by other ‘non-medical sources’ such as
spouses, other relatives, friends, employers, and neighbors … the [ALJ] generally should explain
the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion
of the evidence in the determination or decision allows a claimant or subsequent reviewer to
follow the adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case”).

24

explaining what his employer meant when he said Plaintiff was a “slow” employee.
Additionally, the ALJ found that jobs existed in significant numbers in the national
economy that Plaintiff could perform, and specifically noted, again in a footnote, that,
Counsel proposed additional job preclusive limitations of laying down
during the day, being absent two or three days per month, and being off
task 10 to 15 percent of the work period (vocational expert testimony).
But, these restrictions are not supported by the record that indicates the
claimant’s IBS, anxiety, and depression are stable with medication (Exhibit
5F/6, Exhibit 8F/2).
(Id. at 53, n. 4). However, setting aside the fact that the medical records do not indicate
the level of symptom stability the ALJ asserts, Plaintiff specifically testified that he does
need to lie down, and that he can only work in one hour intervals and is off-task for 50%
of that time. (Id. at 81).
While the ALJ was not required to accept Plaintiff’s allegations as true, he was
required to specify his reasons for discrediting Plaintiff’s testimony. And this Court
agrees that the ALJ failed to provide any concrete assessment of credibility, let alone
articulate specific reasons. Accordingly, the ALJ erred by discrediting Plaintiff’s
testimony without articulating an appropriate basis for his credibility assessment.
C. The ALJ’s RFC Determination
Finally, Plaintiff argues that the ALJ failed to consider the non-exertional
limitations resulting from Plaintiff’s IBS when he created an RFC for sedentary work. In
short, this Court agrees.
While the ALJ recognized that the need for frequent bathroom breaks would
impose certain exertional limitations, i.e., lifting or walking, as required in medium jobs,
25

he failed to recognize that frequent trips to the restroom would also take an individual off
task. Further, at the hearing the ALJ posed a hypothetical to the VE involving an
unskilled, sedentary worker, requiring four fifteen-minute unscheduled bathroom breaks
during the course of the day. (Doc. 5, PageID # 88). The VE opined that such
unscheduled breaks would remove the individual from competitive work. (Id.) And,
significantly, Dr. Makola’s opinion, upon which the ALJ seemed to heavily rely, noted
that, even with medication, Plaintiff still experiences days of uncontrolled diarrhea, with
five to six bowel movements per day. (Id. at 377). Thus, the need for four unscheduled
breaks throughout the day was supported by the record. However, the ALJ’s RFC
determination ultimately failed to include or recognize Plaintiff’s need for unscheduled,
frequent, and lengthy trips to the restroom.
Further, this Court would be remiss in not stating that the ALJ also fails to
consider the toll that Plaintiff’s condition takes on his anxiety and panic attacks. Even if
Plaintiff’s condition were somewhat controlled by medication, the thought of having an
“accident” in the workplace would still provoke enormous anxiety. And, here, the
medical records do not support finding that Plaintiff’s condition is anywhere near as
stable as the ALJ asserts.
Therefore, this Court believes that the ALJ’s RFC determination fails to consider
the severity of Plaintiff’s physical and mental impairments in combination, and does not
properly accommodate Plaintiff’s medical needs, such that he would be able to perform
work at the level suggested.

26

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
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
27

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 sources, Drs. Lunderman and Mauer, Plaintiff is unable to
engage in substantial gainful activity due to his numerous severe, medically determinable
impairments. Proof of disability is overwhelming in the instant case, and remand will
serve no purpose other than delay.
VI. CONCLUSION
Based upon the foregoing, the Court believes the decision of the Commissioner
that Plaintiff Joseph F. Mershad was not entitled to 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 January 1, 2011. That is, Plaintiff’s Statement of Errors is well-taken
and should be sustained.
IT IS THEREFORE RECOMMENDED THAT:
1. The Commissioner’s non-disability finding be VACATED;
2. Plaintiff Joseph F. Mershad’s application for disability insurance benefits be
REMANDED to the Social Security Administration for an immediate
AWARD of benefits beginning January 1, 2011; and
3. This case be CLOSED on the docket of the Court.
Date: 2/18/2016

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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