Beal v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS: 1) The Commissioner's non-disability finding be vacated; 2) No finding be made as to whether Plaintiff Felicia Beal was under a disability; 3) This case be remanded to the Commissioner and the Administrative Law Judge for further consideration consistent with this Report; and 4)The case be terminated on the docket of this Court. Objections to R&R due by 1/31/2017. Signed by Chief Magistrate Judge Sharon L. Ovington on 1-17-16. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
FELICIA BEAL,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner Of The Social
Security Administration,
Defendant.

: Case No. 3:15-cv-00429
:
: District Judge Walter H. Rice
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Felicia Beal brings this case under 42 U.S.C. § 405(g) challenging the

Commissioner of Social Security Administration’s final decision to deny her applications
for Disability Insurance Benefits and Supplemental Security Income. She asserts here, as
she did before the Administration, that beginning on July 19, 2012, her anxiety and
depression constitute disabilities and qualify her for benefits under the Social Security Act.
This case is before the Court upon Plaintiff=s Statement of Errors (Doc. #8), the
Commissioner=s Memorandum in Opposition (Doc. #10), Plaintiff=s Reply, (Doc. #11), the
administrative record (Doc. #6), and the record as a whole.
Plaintiff seeks an Order remanding this case for an award of benefits or,
1

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

alternatively, for further administrative proceedings. The Commissioner seeks an Order
affirming the ALJ’s decision.
II.

Plaintiff=s Vocational Profile and Testimony
On the date Plaintiff’s asserted disabilities began, she was 45 years old. Her age

placed her in the category of “younger person” under Social Security Regulations. See 20
C.F.R. §§ 404.1563(c); 416.963(c).2 She has a limited education. See 20 C.F.R. '
404.1564(b)(3). She has worked in the past as a housekeeper.
Plaintiff testified at an administrative hearing in January 2014 that she could no
longer work because she “sees things.” (Doc. #6, PageID #246). She sees “people
standing there” or “feels like somebody’s in [her] house.” Id. She explained, “I’ve
actually run out of my house thinking somebody’s in there. And I have a habit of being
scared.” Id. She sees things about three times a week. When she feels someone is
there, it is part of feeling scared. It occurs about twice a week, and it occurs separately
from incidents when she sees things. Id. at 253. She gets scared because it feels like
someone is after her or “something [is] going to happen.” Id. It happens when she is
home or when she is outside her home. The feeling can last hours.
Plaintiff testified that she does not like being around other people and instead likes
to be by herself a lot. Id. at 247. She has thoughts of suicide twice a week and has a plan
− to “take pills.” Id. at 255. She thinks about committing suicide a couple of times a
week. The medication she takes has decreased the number of times she has suicidal
2

The remaining citations will identify the Regulations applicable to applications for Disability Insurance
with full knowledge of the corresponding Supplemental Security Income Regulations.

2

thoughts. She sleeps well when she is on her medications, but she has nightmares about
two times a week. She explains, “I had a dream that I was raped and you couldn’t tell me
that it didn’t happen. I was wondering if I should call the police. It was horrible.” Id. at
256.
As to her daily activities, she has difficulty doing the dishes and they just pile up in
the sink because she cannot focus. She starts tasks but does not finish them. Id. at
256-57. She is able to fix her own food and do laundry. Id. at 248. She does not do yard
work or gardening, she takes public transportation, and she sometimes drives places. She
goes to the grocery store but doesn’t stay long.
III.

Medical Opinions
In October 2012 clinical psychologist Daniel Hrinko examined Plaintiff at the

request of the Ohio Division of Disability Determination. (Doc. #6, PageID #s 657-61).
Dr. Hrinko diagnosed Plaintiff with depressive disorder NOS3, anxiety disorder NOS, and
polysubstance disorder in remission by report.4 Id. at 659. He assessed Plaintiff’s
current global assessment of functioning at 45, with the highest score in the past year at 50.
Id.
Based on his clinical interview, Dr. Hrinko reported his summary and conclusions
as follows:
3

NOS refers to conditions Not Otherwise Specified in the Diagnostic and Statistical Manual of Mental
Disorders, Text Revision, 4th ed. (2000).
4

Plaintiff’s medical records include documents showing that she went through a
substance-abuse-treatment program from September 3, 2010 to April 4, 2012. (Doc. #6, PageID #s
687-708).

3

Ms. Beal has a long history of being abused in relationships
including throughout her childhood. In addition, she has been in
many relationships that have included physical and sexual abuse. As
a result of these traumatic experiences, she acknowledges having
difficulty trusting anyone and is constantly vigilant for the potential
threats to harm her. Her primary means of coping with these threats
has been to use mood altering drugs and to avoid social situations
where she believes she is at risk. This contributed to her becoming
increasingly isolated. She reported completing a substance use
treatment program and abstaining from the use of all mood altering
substances. Since that time, she reported experiencing more
powerful symptoms of anxiety. Lastly, she is suffering from
congestive heart failure. In many situations, her anxiety results in a
rise in blood pressure and shortness of breath causing her to fear she
might die. As a reason, she is likely to go to the emergency room and
seek medical treatment.
(Doc. #6, PageID #660).
In the four areas of mental work abilities, Dr. Hrinko first found that Plaintiff had no
cognitive impairments in understanding, remembering, and carrying out instructions, but
“certain situations will contribute to moderate to high levels of anxiety which will interfere
with her ability to focus on these tasks resulting in moderate impairments.” Id. With
respect to maintaining attention, concentration, persistence and pace to perform tasks, Dr.
Hrinko believed that Plaintiff would likely “have difficulty focusing her attention and
concentration on work related tasks due to the intrusive nature of her anxieties and fears.”
Id. In the area of responding appropriately to supervision and co-workers in a work
setting, Dr. Hrinko concluded that Plaintiff’s “assumptions about others being a threat to
her safety and her ongoing fears of being hurt will likely make it extremely difficult for her
to establish and maintain appropriate workplace relationships” and that her history
4

provided examples of her fears leading to conflicts that resulted in her being fired from
jobs. Id. Lastly, with regard to responding appropriately to work pressures in a work
setting, Plaintiff was “likely to have significant problems” making it to work and being
around people. Id. at 661.
In October 2013, licensed social worker Nancy K. Allen completed a form and
wrote a letter assessing Plaintiff’s mental work abilities. (Doc. #6, PageID #s 735-39).
Ms. Allen is designated as an “Outpatient Psychotherapist” with Mental Health Services
for Clark and Madison Counties, Inc. Id. at 735.
In the social interaction domain, Ms. Allen found one moderate, two marked, and
one extreme degree of limitation. Based on the definitions provided in the form, these
limitations denote significant impairments in her ability to respond appropriately to
co-workers and peers, respond appropriately to instruction or criticism from supervisors,
and to maintain socially appropriate behavior. Id. at 736. In the area of sustained
concentration and persistence, Ms. Allen found marked and extreme limitations
performing at expected production levels, maintaining attention and concentration for
more than brief periods of time, and completing work tasks at a consistent pace. Id. at
737. Similarly, the domain of adaptation also included marked and extreme levels of
impairment in multiple abilities, particularly in responding appropriately to changes in the
work setting, and behaving predictably, reliably, and in an emotionally-stable manner. Id.
Ms. Allen explained, in part, that Plaintiff “suffers from paranoid ideation of such
severity she has great difficulty being around more than 1-2 people at a time, even people
5

she knows well. Her severe paranoia causes her to isolate, be fearful of being in public
places, and avoid being around people in general, especially meeting new people.” Id. at
738.
IV.

Standard of Review and ALJ Motta’s Decision
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ

applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);
see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ=s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
Instead, the ALJ=s factual findings are upheld if the substantial˗evidence standard is met—
that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to support a
conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm=r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004). Substantial evidence consists of “more than a scintilla of
evidence but less than a preponderance ....” Rogers, 486 F.3d at 241.
The second line of judicial inquiry, reviewing for correctness the ALJ=s legal
criteria, may result in reversal even if the record contains substantial evidence supporting
the ALJ=s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir.
2009); see Bowen, 478 F.3d at 746. “(E)ven if supported by substantial evidence, ‘a
6

decision of the Commissioner will not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part Bowen, 478
F.3d at 746 and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir.
2004)).
It fell to administrative law judge (ALJ) Elizabeth A. Motta to evaluate the evidence
connected to Plaintiff=s benefit applications. She did so by considering each of the five
sequential steps set forth in the Social Security regulations. See 20 C.F.R. §
404.1520(a)(4).

The ALJ concluded in the main:

1.

Plaintiff had not worked a substantial paid job since the date of her claimed
disability onset (July 19, 2012).

2.

She the severe impairments of “cardiomyopathy with a history of congestive
heart failure secondary to chronic hypertension, an obese body habitus,
depressive and anxiety disorders, and a history of polysubstance abuse in
reported remission….” (Doc. #6, PageID #221).

3.

She does not have an impairment that satisfies the criteria needed to establish
a disability under the Listing of Impairments.5

4.

She could not perform any of her past relevant work. Id. at 230. The ALJ
based this conclusion on her assessment of Plaintiff=s residual functional
capacity, or the most she could do in a work setting despite her limitations.6
The ALJ found:
[Plaintiff] has the residual functional capacity to
perform light work … except [she] is able to stand or

5

The Commissioner=s Listing of Impairments is found at 20 C.F.R. Part 404, Subpart P,
Appendix 1.
6

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

7

walk up to four hours total in an eight-hour day. The
claimant does not retain the capacity to climb ladders,
ropes, or scaffolds, or to climb ramps or stairs on more
than an occasional basis. [She] is able to stoop, kneel,
crouch, and/or crawl occasionally, and to balance
without restriction. [She] should avoid concentrated
exposure to extreme temperatures and humidity, to
known pulmonary irritants, and to hazards. Moreover,
[she] retains the capacity to tolerate occasional and
superficial interaction with co-workers and the general
public; she is able to carry out simple, routine, repetitive
tasks in an environment without the pace demands
characteristic of assembly line work, and she is able to
adapt to occasional changes in a low stress work setting
and to engage in occasional decisionmaking.
Id. at 225.
5.

She is able to perform a significant number of jobs that exist in the national
economy. Id. at 231.

In the end, ALJ Motta=s findings led her to determine (as previously noted) that
Plaintiff was not under a benefits-qualifying disability.
V.

Discussion
Plaintiff contends that the ALJ erred by rejecting the opinions provided by Dr.

Hrinko. She reasons that rather than relying on evidence in the record, the ALJ
improperly relied on her own improper and unsubstantiated assertions.
The Commissioner argues that the ALJ gave numerous good reasons for not
crediting Dr. Hrinko’s opinions, and in doing so, she reasonably assessed his opinions.
Dr. Hrinko is a one-time examining psychologist. In general, more weight is given
to the opinions of examining medical sources than is given to the opinions of
8

non-examining medical sources. See 20 C.F.R. § 404.1527(c)(1). To determine how
much weight to place on a one-time examiner’s opinions, ALJs consider a host of factors,
including supportability, consistency, specialization, and other pertinent factors. 20
C.F.R. §§ 404.1527(c)(3)-(6).
ALJ Motta found that Dr. Hrinko’s opinions were flawed for several reasons. The
ALJ began by recognizing Dr. Hrinko’s opinion that Plaintiff would likely have difficulty
focusing her attention and concentration on work-related tasks due to the intrusive nature
of her anxiety and fears. The ALJ found this to be inconsistent with Dr. Hrinko’s
discussion of Plaintiff’s cognitive functioning, which was mostly positive. The ALJ
pointed to Dr. Hrinko’s report that Plaintiff’s “ability to handle abstractions, basic
calculations, or to interpret proverbs was unimpaired. She was able to recall objects
requested of her as well as information from her distant past, recent past, and immediate
circumstances without difficulty….” (Doc. #6, PageID #227 (quoting PageID #659)).
The ALJ, however, overlooked or ignored that Dr. Hrinko also commented, “She does
report periods of times when her anxiety and panic rise to the point where she is unable to
concentrate or focus her attention….” Id. By missing this aspect of Dr. Hrinko’s report,
the ALJ identified an inconsistency that does not exist in Dr. Hrinko’s report. Indeed,
there is nothing inconsistent about a person who demonstrates mostly positive cognitive
functioning but at times suffers periods of increasing anxiety and panic that leave her
unable to concentrate or focus. Dr. Hrinko’s functional assessment explains this:
“[Plaintiff] is likely to have difficulty focusing her attention and concentration on work
9

related tasks due to the intrusive nature of her anxieties and fears regarding potential
threats to her safety. ….” Id. at 660.
Similarly, Dr. Hrinko opined, “[Plaintiff] shows no evidence of cognitive
impairments that would prevent her from understanding, remembering, or carrying out
instructions. There are indications that certain situations will contribute to moderate to
high levels of anxiety which will interfere with her ability to focus on these tasks resulting
in moderate impairments.” Id. at 660. It was error for the ALJ to find Dr. Hrinko’s
report to be inconsistent without considering the consistency between Plaintiff’s cognitive
functioning and the periodic nature of her increasing anxiety and panic. “[A]
substantiality of evidence evaluation does not permit a selective reading of the record.
‘Substantiality of the evidence must be based upon the record taken as a whole.
Substantial evidence is not simply some evidence, or even a great deal of evidence.
Rather, the substantiality of evidence must take into account whatever in the record fairly
detracts from its weight.’” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th
Cir. 2013) (quoting, in part, Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (internal
citations and quotation marks omitted).
The ALJ also rejected or discounted Dr. Hrinko’s opinions, explaining that Dr.
Hrinko’s “mental status findings appear to largely reflect only claimant’s complaints, and
no objective observations of her mood or demeanor.” (Doc. #6, PageID #227). The ALJ
similarly observed that Dr. Hrinko’s assessment of Plaintiff’s GAF at 45 (referring to
serious symptoms) was based on claimant’s allegations rather than “his own objective
10

findings, which he skimped on in favor of just reciting claimant’s allegations.” Id.
Relying on McClanahan v. Astrue, No. 1:09cv000746, 2011 WL 691365, *10 (S.D.
Ohio 2011) (Litkovitz, MJ), the Commissioner contends that where a doctor’s opinion is
simply a catalogue of a plaintiff’s complaints, the ALJ is not required to accept the doctor’s
opinions. McClanahan, however, is factually distinguished from the present case because
here, Dr. Hrinko did not simply catalogue Plaintiff’s complaints. The following
discussion of the ALJ’s missteps illuminates this.
There are two problems with the ALJ’s explanation. First, the ALJ overlooks that
Dr. Hrinko carefully considered Plaintiff’s reliability when reaching his conclusions about
her mental work abilities. In his “Reliability Estimate,” he wrote, “Ms. Felicia Beal was
deemed to be a reliable informant due to the consistency of information provided by her
during the interview, the level of detail she was able to provide, and her ability to
acknowledge her own strengths and weaknesses. She reported areas of intact functioning
as well as areas impaired by symptoms.” Id. at 660. These particular findings reveal that
Dr. Hrinko did not blindly credit Plaintiff’s subjective reports. Instead, he carefully
assessed her reliability in a substantive and meaningful manner. The ALJ should have
taken this into account when weighing Dr. Hrinko’s opinions. See 20 C.F.R. §
404.1527(c)(3) (“The better an explanation a source provides for an opinion, the more
weight we will give that opinion.”). Dr. Hrinko’s explanation also reasonably implies that
Plaintiff did not embellish her symptoms to Dr. Hrinko. The ALJ should have likewise
considered this when weighing Dr. Hrinko’s decision to credit Plaintiff’s subjective
11

statements.
The ALJ next discounted Dr. Hrinko’s opinions on the ground that he did not rely
on “his own objective findings” or “objective observations of her mood or demeanor.”
(Doc. #6, PageID #227). Lack of objective evidence supporting Dr. Hrinko’s opinions
about Plaintiff’s mental-work abilities is contrary to the U.S. Court of Appeals for the Sixth
Circuit’s recognition that:
[A] psychiatric impairment is not as readily amenable to
substantiation by objective laboratory testing as a medical impairment ...
consequently, the diagnostic techniques employed in the field of psychiatry
may be somewhat less tangible than those in the field of medicine.... In
general, mental disorders cannot be ascertained and verified as are most
physical illnesses, for the mind cannot be probed by mechanical devices in
order to obtain objective clinical manifestations of medical illness.... [W]hen
mental illness is the basis of a disability claim, clinical and laboratory data
may consist of the diagnosis and observations of professionals trained in the
field of psychopathology. The report of a psychiatrist should not be rejected
simply because of the relative imprecision of the psychiatric methodology or
the absence of substantial documentation, unless there are other reasons to
question the diagnostic techniques.
Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (citation omitted). In light of
this discussion in Blakenship, the ALJ’s emphasis on the lack of objective evidence in
support of Dr. Hrinko’s opinions is misplaced.
The ALJ’s decision is further flawed by her misunderstanding of Plaintiff’s anxiety.
The ALJ reported:
Notably, the claimant told [Dr. Hrinko] that she was concerned about
“potential” threats to her safety which she attributed to her lengthy history of
being involved in abusive relationships. Yet, there is no expectation that
she would be working with such individual(s), and she was cooperative at the
hearing, without any objective report that she even appeared anxious or
12

unable to focus.
(Doc. #6, PageID #227). This, however, misses the whole picture. Although being
around abusive coworkers or supervisors would trigger or increase Plaintiff’s anxiety,
substantial evidence does not support the ALJ’s belief that Plaintiff’s mental-work abilities
would be impaired only by the presence of abusive people in her workplace. The ALJ,
moreover, does not cite to or rely on substantial evidence to support her apparent
supposition that Plaintiff will be able to work as long as she does not need to work with or
around abusive people. The ALJ overlooks that Plaintiff’s mental-work limitations stem
largely from her misperception that she is in danger or is being threatened when she is not.
Dr. Hrinko explained, “Ms. Beal is likely to have difficulty focusing her attention and
concentration on work related tasks due to the intrusive nature of her anxieties and fears
regarding potential threats to her safety.” Id. at 660 (emphasis added). Dr. Hrinko
further observed, “[Plaintiff] reported being hypervigilant, trusting no one, and being
fearful that people are ‘out after me’ and ‘will hurt me.’ As a result, she is anxious and
[sic: probably, “in”] public and quickly returns to the ‘safety’ of her living quarters….”
Id. at 659. Plaintiff’s mental-work limitations are caused, as Dr. Hrinko indicates, by her
“assumptions about others being a threat to her safety and her ongoing fears of being hurt
….” Id. These problems “will make it extremely difficult to establish and maintain
appropriate workplace relationships with coworkers and supervisors,” according to Dr.
Hrinko. Id. By overlooking these aspects of Dr. Hrinko’s evaluation, and by incorrectly
narrowing Plaintiff’s anxiety to one causal connection, the ALJ ignored evidence regarding
13

the serious and unpredictable nature of Plaintiff’s anxiety.
Plaintiff also challenges the ALJ’s consideration of the opinions provided by her
counselor Ms. Allen. She argues that instead of describing and applying the correct legal
standards required by Social Security Ruling (Ruling) 06-3p, 2006 WL 2329939 (Aug. 9,
2006), the ALJ “relied upon an incomplete and mis-directed standard of her devise.”
(Doc. #8, PageID# 984). Plaintiff further characterizes as egregious the ALJ’s failure to
account for the longitudinal treatment Ms. Allen provided Plaintiff.
Ms. Allen status as a social worker and counselor places her outside the category of
“acceptable medical sources” but within the category of “other sources.” 20 C.F.R. §§
404.1513(a), (c). ALJs must consider opinions from other sources like Ms. Allen. See
Ruling 06-3p, 2006 WL 2329939, *1 (citing 20 C.F.R. §§ 404.1512, 1527) (other citation
omitted). The Commissioner, through Ruling 06-03p, explains:
With the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are not
“acceptable medical sources,” such as nurse practitioners, physician
assistants, and licensed clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation functions previously
handled primarily by physicians and psychologists. Opinions from these
medical sources, who are not technically deemed “acceptable medical
sources” under our rules, are important and should be evaluated on key
issues such as impairment severity and functional effects, along with the
other relevant evidence in the file.
2006 WL 2329939, at *3. The factors applicable to acceptable medical sources “can be
applied to opinion evidence from ‘other sources.’” Id. at *4. They “’represent basic
principles that apply to the consideration of all opinions from medical sources … who have
14

seen the individual in their professional capacity.’” Gayheart, 710 F.3d at 378 (citation
omitted). ALJs “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.” Id. at *6.
The ALJ rejected Ms. Allen’s opinions about Plaintiff’s mental work abilities. The
ALJ recognized that Ms. Allen diagnosed Plaintiff with depression with psychotic features.
She continued, “A GAF score of 55 was assigned, indicating moderate symptoms.
Treatment through December 2013, where the records end, was not extensive and there
were apparently no concerns of serious psychosis as hospitalizations and recommendation
for such is not in evidence…. Notably, mental status exams were mostly normal other
than some depression or anxiety noted and some persecutory delusions only
sometimes….” (Doc. #6, PageID #227). Substantial evidence does not support the
ALJ’s view of Plaintiff’s treatment records with Ms. Allen.
Most of Plaintiff’s mental-status-exam results arose relative to the anxiety and
paranoia Ms. Allen frequently documented from April through December 2013. After an
initial period of crisis intervention, which stabilized Plaintiff’s condition such that her GAF
was 55, id. at 791-92, Plaintiff presented to Ms. Allen with high anxiety and paranoia.
She was suffering from sleep disturbance and deprivation. She admitted thoughts of
dying and suicide with no plan. Her mood was anxious, her insight was limited, her
thought content was impaired. Id. at 790. Ms. Allen assessed her GAF at 40, id., which
15

by definition indicates is a far cry from a GAF of 55, because it arises from some
impairment in reality testing or communication or major impairment in several areas such
as work or school, family relations, judgment, thinking, or mood.” DSM IV-TR, p. 34.
Nine days later, Plaintiff was still experiencing high anxiety and sleep disturbance, and
reported having experiencing an episode of “full blown panic.” Id. at 789. Ms. Allen
noted that Plaintiff’s progress had been minimal.
Plaintiff made moderate progress before her next session with Ms. Allen. She
reported much improvement with less anxiety and paranoia. This is not to say that she
was free of these problems; her goals remained to reduce paranoid thoughts and reduce
suicidal ideation. She had also made minimal progress in becoming comfortable around
people. She was struggling with trusting people and was isolating herself in her
apartment. Id. at 788. Plaintiff’s treatment records with Ms. Allen reflect similar
problems throughout the remaining session in 2013 with some periods of relative
improvement in some areas. Yet, she also had ongoing difficulties, particularly with
trusting and being around others. For example, on October 17, 2013, one of her goal of
reducing paranoid thoughts remained unmet. She had made minimal progress to the
extent she could “tell the difference between paranoia and threats of harm but knowing the
difference does little/nothing to ease her fear/anxiety once she becomes fearful.” Id. at
779. She did make progress in reducing suicidal thoughts, but she retained the goal of
reducing suicidal ideation. Id.
In light of these and other treatment records written by Ms. Allen in 2013,
16

substantial evidence fails to support the ALJ’s cursory and incorrect reasons for
discounting Ms. Allen’s opinions. Additionally, Plaintiff is correct that the ALJ ignored
or overlooked the longitudinal treatment Ms. Allen provided Plaintiff in 2013, which
constituted a longer period of treatment than any provided by the acceptable medical
sources of record. Lastly, Ms. Allen treatment notes are largely consistent with the
information and opinions Dr. Hrinko expressed in his report. The ALJ should have
considered such consistency when evaluating at least Dr. Hrinko’s opinions.
Tacking in a difference direction, the Commissioner contends that ALJ Motta
properly analyzed a previous ALJ’s decision in July 20127 under Acquiescence Ruling
98-4(6), 2011 WL283902 (1998) and Drummond v. Comm’r of Soc. Sec., 126 F.3d 387
(6th Cir. 1997). Yet, because of the problems discussed above in the ALJ’s weighing of
Dr. Hrinko’s opinion, the issue of whether the ALJ properly applied AR 98-4(6) and
Drummond remains presently unanswered. This is so because if Dr. Hrinko’s opinions
postdate the prior ALJ’s decision and because Dr. Hrinko’s opinions, if credited, may
warrant a determination different from the previous ALJ’s determination.
Accordingly, Plaintiff’s Statement of Errors is well taken.
VI.

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

evidence or when the ALJ failed to follow the Administration=s own regulations and that

7

(Doc. #6, PageID #s 273-86).

17

shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand for an ALJ=s failure to follow the regulations
might arise, for example, when the ALJ failed to provide “good reasons” for rejecting a
treating medical source's opinions, see Wilson, 378 F.3d at 545-47; failed to consider
certain evidence, such as a treating source’s opinions, see Bowen, 478 F3d at 747-50; failed
to consider the combined effect of the plaintiff's impairments, see Gentry, 741 F.3d at
725-26; or failed to provide specific reasons supported by substantial evidence for finding
the plaintiff=s credibility lacking, Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. '405(g), the Court has authority to affirm,
modify, or reverse the Commissioner=s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir.
1994). The latter is warranted “only where the evidence of disability is overwhelming or
where the evidence of disability is strong while contrary evidence is lacking.” Felisky v.
Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994) (quoting Faucher v. Sec'y of Health & Humans
Servs., 17 F.3d 171, 176 (6th Cir. 1994)).
A remand for an award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and because the evidence of disability is not
strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is
entitled to an Order remanding this matter to the Social Security Administration pursuant
18

to sentence four of § 405(g) due to problems set forth above. On remand the ALJ should
be directed to review Plaintiff’s disability claim to determine anew whether she was under
a benefits-qualifying disability under the applicable five-step sequential evaluation
procedure, including, at a minimum, a re-assessment of her residual functional capacity
and a re-consideration of the evidence at steps four and five of the sequential evaluation.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner=s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Felicia Beal was under a
Adisability@ within the meaning of the Social Security Act;

3.

This case be remanded to the Commissioner and the Administrative Law
Judge under sentence four of 42 U.S.C. '405(g) for further consideration
consistent with this Report; and

4.

The case be terminated on the docket of this Court.

January 17, 2017

s/Sharon L. Ovington
Sharon L. Ovington
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 (14) days after
being served with this Report and Recommendations. 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 Recommendations are 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 (14)
days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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