Kenyon v. Commissioner of Social Security

Filing 9

REPORT AND RECOMMENDATION THAT: (1) THE ALJS 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 (3) THIS CASE BE CLOSED. RE: 1 Complaint filed by Bonnie J. Kenyon Objections to R&R due by 8/1/2016. Signed by Magistrate Judge Michael J. Newman on 7/15/2016. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BONNIE KENYON,
Plaintiff,

Case No. 3:15-cv-194

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 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 (3) THIS CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 6), the Commissioner’s memorandum in opposition (doc. 7),
Plaintiff’s reply (doc. 8), the administrative record (doc. 5),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed for DIB alleging a disability onset date of November 3, 2009. PageID 44.
Plaintiff claims disability as a result of a number of alleged impairments including, inter alia,

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

affective disorder, anxiety disorder, attention deficit hyperactivity disorder (“ADHD”), and
insomnia. PageID 46.
After initial denials of her applications, Plaintiff received a hearing before ALJ Irma
Flottman on October 24, 2013. PageID 58-81. The ALJ issued a written decision on February
11, 2014 finding Plaintiff not disabled. PageID 44-53. Specifically, the ALJ found as follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity since
November 3, 2009, the alleged onset date (20 CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments: affective disorder,
anxiety disorder, attention deficit hyperactivity disorder (“ADHD”),
and insomnia (20 CFR 404.1520(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).

5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity [“RFC”] to
perform a full range of work at all exertional levels but with the
following nonexertional limitations: work is limited to simple, routine
and repetitive tasks; in a low stress job, defined as having only
occasional changes in the work setting; with no production rate or
pace; only occasional interaction with co-workers, supervisors, and the
public.

6.

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

7.

The claimant was born [in] 1953 and was 55 years old, which is
defined as an individual of advanced age, on the alleged disability
onset date (20 CFR 404.1563).

8.

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

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
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supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills (See SSR 82-41and 20 CFR
Part 404, Subpart P, Appendix 2).
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 and 404.1569(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from November 3, 2009, through the date of this
decision (20 CFR 404.1520(g)).

PageID 46-53.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 35-37.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).
B.

Evidence of Record

In her decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 48-51. Plaintiff, in her Statement of Errors, summarizes the relevant
medical evidence. Doc. 6 at PageID 406-09. The Commissioner defers to the ALJ’s recitation of
evidence.

Doc. 7 at PageID 426.

Except as otherwise stated herein, the undersigned

incorporates the recitation of evidence put forth by both Plaintiff and the ALJ.

Where

applicable, the Court will identify the medical evidence relevant to this decision.
II.
A. Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
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the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.

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Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, the complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F.Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
Plaintiff argues that the ALJ erred in weighing medical opinion evidence it relates to her
mental health impairments; specifically, the ALJ’s analysis of opinions offered by: (1) treating
source Amita R. Patel, M.D.; (2) examining source David Chiappone, Ph.D.; and (3) recordreviewers Jennifer Swain, Psy.D., and Frank Orosz, Ph.D. Doc. 6 at PageID 404. As the first of
these arguments are dispositive -- and merits a reversal and remand -- the Court need not reach
the merits of Plaintiff’s remaining arguments.
Plaintiff first argues that the ALJ erred in not assigning controlling weight to the opinion
of treating source Dr. Patel and, further, by not providing “good reasons” for the weight actually

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given. “[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 and psychologists 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 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. § 404.1527(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).

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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
the treating source’s medical opinion and the reasons for that weight.’” Id. “[I]t is not enough to
dismiss a treating physician’s opinion as ‘incompatible’ with other evidence of record” in the
absence of “some effort to identify the specific discrepancies and to explain why it is the treating
physician’s conclusion” is accorded lesser weight. Friend v. Comm’r of Soc. Sec., 375 F. App’x
543, 551-52 (6th Cir. 2010).
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; see also 20 C.F.R. § 404.1527(c).3 In addition, unless the opinion of the
treating source is entitled to controlling weight, an ALJ must “evaluate all medical opinions
according to [these] factors, regardless of their source[.]” Walton v. Comm’r of Soc. Sec., No.
97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12 CV 3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of” 20 C.F.R.
§ 404.1527. Id.
3

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In December 2011, Dr. Patel found that Plaintiff suffered from generalized anxiety
disorder, insomnia, bipolar disorder, fatigue, and ADHD. PageID 303. As a result of those
impairments, Dr. Patel concluded that Plaintiff could not “stay on task,” suffered constant
anxiety, “lack[ed] concentration” and could not work. Id. Subsequently, in November 2012, Dr.
Patel found that Plaintiff had continual episodes of deterioration or decompensation; frequent
deficiencies in concentration, persistence, or pace; marked4 limitations in her ability to function
outside the home; and marked limitations in her ability to maintain occupational functioning.
PageID 381-83. The ALJ gave “little weight” to Dr. Patel’s opinion because his conclusions
purportedly “[did] not comport with [Plaintiff’s] reported activities of daily living[,]” and were
inconsistent with his own records. PageID 51.
Although a treating source’s opinion must be given controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence in the record, see Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citations omitted), the ALJ here did not conduct such an
analysis. Initially, the Court notes that the ALJ failed to mention the concept of controlling
weight when analyzing Dr. Patel’s opinion or consider the appropriate factors in this regard. See
Wilson, 378 F.3d at 544. Thus, the Court cannot determine whether or not the ALJ undertook
the “two-step inquiry” required when analyzing treating source opinions. See Gayheart, 710
F.3d at 376-78. The lack of explanation regarding the “controlling weight [analysis] hinders a
meaningful review of whether the ALJ properly applied the treating-physician rule that is at the
heart of this regulation.” Id.
Whereas “mild” and “moderate” functional limitations are generally considered “nondisabling,” see Sims v. Comm'r of Soc. Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” limitations
are suggestive of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan, 942
F.2d 301, 307 (6th Cir. 1991).
4

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Even assuming, arguendo, that the ALJ appropriately conducted a controlling weight
analysis -- which did not occur here -- the undersigned would nevertheless find that the reasons
given by the ALJ in rejecting Dr. Patel’s opinion are unsupported by substantial evidence in the
record. Notably, with regard to treatment records, Dr. Patel consistently noted clinical findings
regarding Plaintiff’s mental condition, such as distracted attention; psychomotor retardation; sad,
anxious, and irritable mood; flat and blunted affect; preoccupation; and limited judgment. See
PageID 284-96, 330-63, 384-89, 392-99. Thus, there are clinical signs in the record supporting
Dr. Patel’s opinion. See Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (citations
omitted) (“a psychiatric impairment is not as readily amenable to substantiation by objective
laboratory testing as a medical impairment” and, therefore, with regard to mental impairments,
“clinical and laboratory data may consist of the diagnosis and observations of professionals
trained in the field of psychopathology”).
Instead of noting these findings, the ALJ focuses on Global Assessment of Functioning
(“GAF”) scores5 provided by Dr. Patel. PageID 51 (noting that Dr. Patel “consistently assigned
[Plaintiff] a GAF indicating only moderate symptoms”). A GAF score, however, is merely a
snapshot of a person’s “overall psychological functioning” at or near the time of the evaluation.
See Martin v. Comm’r, 61 F. App’x 191, 194 n.2 (6th Cir. 2003). Additionally, GAF scores “are
not raw medical data and do not necessarily indicate improved symptoms or mental functioning.”
Kennedy v. Astrue, 247 F. App’x 761, 766 (6th Cir. 2007). In fact, a “GAF score, alone, cannot

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”).
5

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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).
Aside from the foregoing, the undersigned’s careful review of the record shows that Dr.
Patel’s opinions are consistent with other evidence. Most notably, consultative examiner Dr.
Chiappone -- the only other acceptable mental health medical source to actually examine
Plaintiff -- opined that Plaintiff “would have difficulty maintaining attention and concentration
over time” and “would have difficulty dealing with stress on a job.” PageID 370. Further, the
ALJ failed to note that Dr. Patel specializes in psychiatry and treated Plaintiff regularly
beginning in June 2010. PageID 284-96. While the ALJ is not required to list each factor one by
one in conducting her analysis, she must at least provide a reviewing court with sufficient
discussion to allow the Court to follow her reasoning. See Cole v. Astrue, 661 F.3d 931, 938 (6th
Cir. 2011). The ALJ’s failure -- to note the factors that weigh in favor of Dr. Patel’s opinion -shows that such opinion was subjected to an improper heightened level of scrutiny. Gayheart at
377.
Based on the foregoing, the ALJ’s non-disability finding is unsupported by substantial
evidence and should be reversed.
IV.
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

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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, the proof of disability is not overwhelming, and there are conflicting medical
opinions concerning Plaintiff’s impairments. Upon remand, the ALJ should appropriately assess
the findings by Dr. Patel and all other evidence of record utilizing a vocational expert and/or
medical advisor, if necessary.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

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.
Date:

The Commissioner’s non-disability finding be found unsupported by
substantial evidence, and REVERSED;

This case be CLOSED.
July 15, 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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