Ritchie v. Commissioner of Social Security Administration

Filing 12

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Mary I. Ritchie was under a "disability" within the meaning of the Social Security Act; this matter be REMAND ED to the Social Security Administration for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and the case be terminated on the Court's docket. Objections to R&R due by 2/27/2017. Signed by Magistrate Judge Sharon L. Ovington on 2/13/2017. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARY I. RITCHIE,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-84
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Mary I. Ritchie brings this case challenging the Social Security

Administration’s denial of her application for Supplemental Security Income. She
applied for benefits on July 2, 2013, asserting that she could no longer work a substantial
paid job due to a history of anxiety and depression, post-traumatic stress disorder,
obsessive-compulsive disorder, schizophrenia, anxiety, a learning disorder not otherwise
specified (NOS), anorexia nervosa, a personality disorder NOS, borderline personality
disorder, psychosis, bipolar disorder, minimal disc-space narrowing, and posterior facet
degenerative change at the L5-S1 level of the lumbosacral spine with a questionable pars
defect at the L5 level. Administrative Law Judge (ALJ) Emily Ruth Statum concluded

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

that she was not eligible for benefits because she is not under a “disability” as defined in
the Social Security Act.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), 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 a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Statum’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a “disability” since July 5, 2008. She was

twenty-eight years old at the time and was therefore considered a “younger person” under
Social Security Regulations. She has a ninth-grade or limited education.
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Statum that she is disabled because she
has visual and auditory hallucinations. (Doc. #6, PageID #115). She takes medication to
stop them, including Abilify, Cymbalta, and Klonopin. Id. at 115-16. She believes the
medications help, but she still has visions of people and things when she lies down to go
to sleep and has auditory hallucinations during the day. Id. at 116. Plaintiff sees a
psychiatrist, Dr. Schmitt, approximately once per month. Id. at 117. She is supposed to
see a therapist as well but she procrastinates making appointments. Id. at 119. Because
her symptoms are not under control, Plaintiff’s medication and doses continue to change.
Id. at 120.
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Plaintiff also has obsessive-compulsive disorder (OCD). Id. Her symptoms
include cutting her hair really short over and over again; taking three baths/showers per
day to stay clean all the time; washing her hands all the time; and cleaning the house. Id.
at 121. She is attempting to grow her hair out, but she thinks her OCD symptoms are
under control because her husband hid the clippers and razors from her. Id.
Plaintiff stated that in some ways her symptoms are getting better, and in some
ways they are not. Id. She is more aware of herself and has better self-control. Id. But,
she continues to hear things that are not true from other people. Id.
Plaintiff indicated that she had an eating disorder at one point but it was not
diagnosed. Id. at 122. She does not have it anymore. Id. She has a history of marijuana
use and has also used alcohol and other drugs “pretty regularly.” Id. at 121. She is no
longer using drugs. Id. at 122. Plaintiff has been in the hospital several times. Id. at 117.
She was last in a couple years ago, and she was there for eight days. Id.
Plaintiff also suffers from back, knee, and foot pain. Id. at 122. She believes her
foot is fractured. Id. She takes Ultram and ibuprofen for the pain but they make her feel
tired. Id. at 123. At the time of the hearing, she stated that she scheduled an appointment
to address her physical problems. Id.
Plaintiff lives with her husband and two children. Id. at 112. Plaintiff has
problems interacting with her husband. Id. at 117. She explained, “I think he’s calling
me names when he says he’s not calling me name[s] and we argue.” Id. at 118. She gets
along well with her children. Id. Although it is sometimes overwhelming, she is able to
“take care of things at home.” Id. at 123. She prepares meals, helps her children with
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homework, and cleans the house. Id. She also goes to the grocery, either walking there
with her children or going with her husband. Id. at 118. When she is at the grocery store,
she tries to “just get in and get out.” Id.
Plaintiff has never had a driver’s license. Id. at 112. She has a ninth-grade
education, and she is able to read and write. Id. at 113. In school, she was in “LD
classes” for every subject. Id. at 119. She last worked at a hotel as a housekeeper in
2007 for “about a week or so.” Id. at 113. Before that she worked at a gas station as a
cashier for a couple months. Id. In 2002, she worked at Russ’ Market in the deli. Id. at
114-15. She worked at a Shell gas station and Wendy’s in 2000. Id. at 114.
B.

Vocational Expert’s Testimony

A vocational expert, Eric Pruitt, also testified at the hearing before ALJ Statum.
Id. at 124. The ALJ asked Mr. Pruitt if the following hypothetical individual could
perform Plaintiff’s past work: Assume a younger individual, age 27-33, with a ninthgrade education, Plaintiff’s past work experience, and the ability to perform light work
except that the individual is able to perform unskilled work that is simple, carrying out
one to two-step tasks in a setting that does not require fast-pace or strict production
demands, with occasional contact with coworkers and supervisors and less than
occasional contact with the public. Id. at 124-25. Mr. Pruitt testified that the
hypothetical person could not perform Plaintiff’s past work but could perform other work
in the national economy. Id. at 125. He gave the examples of laundry-press operator
(27,800 jobs nationally), buffing-machine tender (3,500 jobs nationally), and machine
cutter II (18,000 jobs nationally). Id. at 126-27. When asked how many unskilled, light
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jobs there are in the national economy, Mr. Pruitt responded, “Nine million.” Id. at 126.
The ALJ asked, “Nine million?” and he responded, “324,378.” Id. Mr. Pruitt further
testified that the hypothetical individual could not perform jobs in the national economy
if the individual only had the ability to stay on task occasionally or had the ability to
respond appropriately to supervisors and coworkers on a less than occasional basis. Id.
C.

Medical Opinions
i. Mariella Toca, M.D.

Dr. Toca, Plaintiff’s treating psychiatrist, completed an assessment on June 11,
2008. Id. at 934-36. She diagnosed major depressive disorder, single episode, moderate;
sexual disorder, not otherwise specified (NOS); alcohol abuse; and cannabis abuse. Id. at
934. Dr. Toca opined Plaintiff was markedly limited in her ability to carry out detailed
instructions and maintain attention and concentration for extended periods, and
moderately limited in her ability to understand and remember detailed instructions;
perform activities within a schedule, maintain regular attendance, and be punctual;
sustain an ordinary routine; work with or near others without being distracted by them;
accept instructions and respond appropriately to criticism from supervisors; get along
with coworkers; respond appropriately to changes; and travel in unfamiliar place or use
public transportation. Id. at 935.
Plaintiff reported to Dr. Toca that her mental health problems began in third grade.
Id. at 936. When she was thirteen, she was removed from her mother’s custody and
placed with an aunt. Id. Between the ages of ten and fifteen, she was physically and
sexually abused. Id. She reported using drugs and alcohol but said she stopped using
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drugs when she was twenty-one years old and stopped drinking alcohol in 2006. Id. She
was used for sex when she was twenty years old and now has trust issues. Id. Dr. Toca
opined that she “experiences depressive mood with anxiety related to [her] past trauma.”
Id. Further, “She has difficulty following up with her [] appointments and staying on her
prescribed medication.” Id. Dr. Toca concluded that Plaintiff is unemployable and her
limitations are expected to between nine and eleven months. Id.
ii. Amita Oza, M.D.
Dr. Oza examined Plaintiff on September 10, 2013. Id. at 411-16. Dr. Oza noted
that Plaintiff was diagnosed with depression, social anxiety disorder, schizophrenia, and
OCD five years ago. Id. at 411. She also has hyperlipidemia, GERD, and pain in her
abdomen. Id. Upon examination, Dr. Oza noted that in her abdomen, she had
nonspecific left upper quadrant tenderness. Id. at 412. Dr. Oza opined that Plaintiff’s
“main problems seem[] to be psychiatric.” She concluded, “provided psychiatrically she
can function and medically she can perform appropriate work-related activities. Id.
iii. Kristen Haskins, Psy.D.
Dr. Haskins reviewed Plaintiff’s records on August 30, 2013. Id. at 155-64. She
found that Plaintiff has three severe impairments: an affective disorder, a personality
disorder, and an organic mental disorder. Id. at 159. She also has one non-severe
impairment, an alcohol, substance addiction disorder. Id. Under the “B’ criteria of the
listings, Dr. Haskins opined Plaintiff has mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning and maintaining concentration,
persistence, or pace; and no repeated episodes of decompensation. Id. at 160. Instead of
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completing a new mental residual functional capacity assessment, Dr. Haskins adopted
“the ALJ determination dated 07/27/2011. It is adopted under AR 98-4.” Id. at 162.
iv. Cindy Matyi, Ph.D.
Dr. Matyi reviewed Plaintiff’s records on November 15, 2013. Id. at 166-80. She
found that Plaintiff has three severe impairments: an affective disorder, a personality
disorder, and a learning disorder. Id. at 174. She also found that Plaintiff has five nonsevere impairments: a disease of the esophagus, migraines, a disorder of the thyroid
gland, a sleep-related breathing disorder, and an alcohol, substance addiction disorder.
Id. She agreed with Dr. Haskins that under the ‘B’ criteria, Plaintiff has moderate
difficulties in maintaining social functioning and maintaining concentration, persistence,
or pace. Id. However, Dr. Matyi found that she has moderate restriction of activities of
daily living and one or two repeated episodes of decompensation. Id.
Dr. Matyi opined that Plaintiff is markedly limited in her ability to interact
appropriately with the general public; and moderately limited in her ability to carry out
detailed instructions; maintain attention and concentration for extended periods; work in
coordination with or in proximity to others without being distracted by them; complete a
normal workday and workweek without interruptions from psychologically-based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers without distracting them or exhibiting behavior
extremes; and respond appropriately to changes in the work setting. Id. at 176-77.

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III.

Standard of Review
The Social Security Administration provides Supplemental Security Income to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). The term
“disability”— as defined by the Social Security Act—has specialized meaning of limited
scope. It encompasses “any medically determinable physical or mental impairment” that
precludes an applicant from performing a significant paid job—i.e., “substantial gainful
activity,” in Social Security lexicon. 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at
469-70.
Judicial review of an ALJ’s non-disability 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. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). 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

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scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when 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 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)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Statum to evaluate the evidence connected to

Plaintiff’s application for benefits. But, before reaching the present case, the ALJ
considered Plaintiff’s previous application for benefits and the previous ALJ’s decision.
ALJ Statum found, “The evidence shows that [Plaintiff’s] condition has changed
appreciably since the issuance of the prior decision in July 2011. The residual functional
capacity previously established in the decision of July 27, 2011, is no longer applicable.
The prior finding that [Plaintiff] has no ‘past relevant work’ continues to be applicable.”
(Doc. #6, PageID #80-81).

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After determining that she was not bound by the prior decision, ALJ Statum began
her consideration of each of the five sequential steps set forth in the Social Security
regulations. See 20 C.F.R. § 416.920. She reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since July
2, 2013.

Step 2:

She has the severe impairments of a history of anxiety and depression,
post-traumatic stress disorder, obsessive-compulsive disorder,
schizophrenia, anxiety, learning disorder not otherwise specified
(NOS), anorexia nervosa, personality disorder NOS, borderline
personality disorder, psychosis, bipolar disorder, minimal disc-space
narrowing, and posterior facet degenerative change at the L5-S1 level
of the lumbosacral spine with a questionable pars defect at the L5
level.

Step 3:

She does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

Her residual functional capacity, or the most she could do despite her
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “light work . . . subject to the following
additional limitations: unskilled and simple tasks with an ability to
carry out one-step or two-step instructions in a work setting that does
not require fast pace or strict production demands with occasional
contact with co-workers and supervisors and less than occasional
contact with the public.”

Step 4:

She is unable to perform any of his past relevant work.

Step 5:

She could perform a significant number of jobs that exist in the
national economy.

(Doc. #6, PageID #s 80-97). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 97.

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V.

Discussion
Plaintiff contends that the ALJ’s failure to follow the Regulations in evaluating the

opinion evidence and in weighing her credibility, pain, and symptom severity denotes a
lack of substantial evidence and error of law. Additionally, she asserts that the ALJ
failed to adequately account for her moderate limitation in concentration, persistence, or
pace in the hypothetical to the vocational expert. The Commissioner maintains that
substantial evidence supports the ALJ’s evaluation of medical opinions, credibility
determination, and step-five findings.
A.

Plaintiff’s Credibility

ALJ Statum determined that Plaintiff’s “allegations of disability” were
“disproportionate and less than credible.” (Doc. #6, PageID #94). The Sixth Circuit
established a two-part analysis for assessing the credibility of a plaintiff’s statements
about his/her symptoms:
First, the ALJ will ask whether there is an underlying
medically determinable physical [or mental] impairment that
could reasonably be expected to produce the claimant’s
symptoms. 20 C.F.R. § 416.929(a). Second, if the ALJ finds
that such an impairment exists, then he must evaluate the
intensity, persistence, and limiting effects of the symptoms on
the individual’s ability to do basic work activities. Id.
Rogers, 486 F.3d at 247; see also 20 C.F.R. § 416.929. When evaluating the intensity,
persistence, and limiting effects of a plaintiff’s symptoms, the ALJ must consider the
following factors: daily activities; location, duration, frequency, and intensity of the pain
or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness,
and side effects of any medication the plaintiff takes or has taken to alleviate symptoms;
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treatment, other than medication, the plaintiff receives or has received for relief of
symptoms; any measures the plaintiff uses or has used to relieve symptoms; and other
factors concerning the plaintiff’s functional limitations and restrictions due to pain or
other symptoms. 20 C.F.R. §416.929(c)(3).
The ALJ “must then make a finding on the credibility of the individual’s
statements about symptoms and their functional effects.” Soc. Sec. Rul. No. 96-7p, 1996
WL 374186, at *4 (Soc. Sec. Admin. July 2, 1996).2 “Social Security Ruling 96-7p also
requires the ALJ explain his credibility determinations in his decision such that it must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that
weight.” Rogers, 486 F.3d at 248 (internal quotation and footnote omitted); see also
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994) (“If an ALJ rejects a claimant’s
testimony as incredible, he must clearly state his reasons for doing so.”) (citation
omitted).
“[A]n ALJ’s findings based on the credibility of the applicant are to be accorded
great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness’s demeanor and credibility.” Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997) (citing Villarreal v. Sec’y of Health & Human Servs., 818
F.2d 461, 463 (6th Cir. 1987); see Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th

2

The Social Security Administration issued Soc. Sec. Rul. No. 16-3p, effective March 16, 2016, which
supersedes Soc. Sec. Rul. No. 96-7p. At the time of the ALJ’s decision in this case, Soc. Sec. Rul. No.
96-7p was still in effect.

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Cir. 2007). However, an ALJ’s assessment of credibility must be supported by
substantial evidence. Cruse, 502 F.3d at 542 (citing Walters, 127 F.3d at 531).
In the present case, the ALJ found, “The extent of (physical and mental)
impairment alleged by [Plaintiff] is unsubstantiated by convincing objective medical
evidence or clinical findings. [Plaintiff’s] allegations appear somewhat excessive when
viewed within the context of the medical record.” (Doc. #6, PageID #93). The ALJ
emphasizes a few of Plaintiff’s activities: maintaining the residence for her husband and
children; walking to the grocery; running errands; and preparing meals. Id.
Although Plaintiff may do those activities some of the time, there is no evidence
that she is able to do them “on a sustained basis, which is how the functional limitations
of mental impairments are to be assessed.” Gayheart, 710 F.3d at 377 (citing 20 C.F.R. §
404.1520a(c)(2); 20 C.F.R. Part 404, Subpart P, Appendix 1, at 12.00)). For example,
Plaintiff reported in August 2013 that she gets overwhelmed at home and isolates herself
from her children and husband. (Doc. #6, PageID #858). Additionally, in May 2013, a
physician noted that she “seems to be having difficulty fulfilling responsibilities at
home.” Id. at 402. When Plaintiff told a social worker that her eight-year-old son sees a
psychiatrist because he has anger issues and is noncompliant, the social worker noted,
“Client presented with no awareness of how her inconsistent presence in [the] home[,]
drug use[,] and other behaviors may be connected to her child’s issues.” Id. at 402, 853
(emphasis added).
The record reveals that Plaintiff was absent from home, sometimes for long
periods of time, and notes from Eastway Behavioral Healthcare (Eastway) indicate
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Plaintiff’s husband has full custody of the children and he owns the house. Id. at 853.
On September 13, 2012, for example, she told hospital staff that she was leaving her
husband and going to stay at a homeless shelter. Id. at 563. More than one month later,
on October 19, 2012, she returned to the hospital for a psychiatric evaluation, agreed to
let the social worker contact her husband, and then returned home. Id. at 607-09. In
November 2012, Plaintiff reported to the emergency department that she and her husband
got into a fight and “he threw [her] out . . . .” Id. at 1174. Thus, Plaintiff’s ability to
intermittently maintain the household, walk to the grocery, run errands, and prepare
meals is not inconsistent with her asserted limitations.
The ALJ further found that “observable clinical signs . . . reveal that [Plaintiff’s]
condition has improved with sobriety.” Id. at 93. She notes, “an examination on January
14, 2014 revealed that she was alert and oriented as to the time, person and place and
exhibited normal psychomotor activity . . . .” Id. at 93 (citing Ex. B44F at 5). Further,
“an examination on May 29, 2012 disclosed a normal mood, normal judgment and a
normal affect despite claims of increasing anxiety and suicidal ideation.” Id. at 93
(emphasis added) (citing Ex. B28F at 4). It is difficult to understand how this note shows
improvement of Plaintiff’s conditions, as it seems unlikely that Plaintiff’s mood,
judgment, or affect were “normal” when she was “thinking about, considering, or
planning suicide.” Definitions: Self-Directed Violence, CENTERS FOR DISEASE CONTROL
& PREVENTION, https://www.cdc.gov/violenceprevention/suicide/definitions.html (last
updated Aug. 15, 2016).

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The ALJ’s examples are the very definition of cherry-picking the record. “Instead
of performing a proper analysis of the medical evidence under agency regulations and
controlling case law, the ALJ cherry-picked select portions of the medical record to
discredit [the plaintiff’s] complaints . . . .” Minor v. Comm'r of Soc. Sec., 513 F. App’x
417, 435 (6th Cir. 2013) (citing Germany–Johnson, 313 F. App’x. 771, 777 (6th Cir.
2008) (noting the ALJ “was selective in parsing the various medical reports”); Boulis–
Gasche v. Comm‘r of Soc. Sec., 451 F. Appx. 488, 494 (6th Cir. 2011) (noting ALJ’s
conclusion was “grounded in a myopic reading of the record combined with a flawed
view of mental illness”)). The ALJ compounded this problem by relying on these
specific facts over and over again. The ALJ mentions five separate times throughout her
decision that Plaintiff was cooperative, had no impairment of cognition, average
intelligence, a full affect, good demeanor and a euthymic mood on August 22, 2013. Id.
at 87, 89, 93-95 (all citing Ex. B4F at 7-8). Similarly, she notes five times that on
January 14, 2014, Plaintiff was alert and oriented to the time, person, and place; and
exhibited normal psychomotor activity, normal mood and affect, normal speech, normal
digit recall and number repeating, normal concentration, normal/average intelligence, and
intact memory, judgment, and insight. Id. at 88, 89, 93-95 (all citing Ex. B44F at 5-6).
The ALJ’s examples are not representative of the record as a whole. For example,
when documenting Plaintiff’s objective mental status, physicians at Eastway regularly
opined that Plaintiff’s mood was depressed (ten of fourteen appointments) and her affect
was constricted (nine of fourteen). Id. at 388-402, 858-63, 1256, 1359-64. Eastway’s

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progress notes distinguish between subjective reports by the patient and clinical
observations by physicians. Plaintiff’s mood and affect fall under clinical observations.
Additionally, the ALJ omits or ignores that Plaintiff presented to Grandview
Hospital and Miami Valley Hospital reporting symptoms of her mental impairments (this
includes the times Plaintiff had both mental and physical symptoms) at least eighteen
times between 2009 and 2013. Id. at 429-519, 563-628, 708-69, 954-1010, 1028-37,
1058-1066, 1077-87, 1112-24, 1139-43, 1168-97. In addition to those visits, Plaintiff
reported to the hospitals eighteen times with only physical symptoms between 2010 and
2014. Id. at 526-53, 642-97, 778-838, 1011-27, 1043-51, 1077-87, 1129-43, 1147-66,
1199-1206, 1214-31, 1241-1352. Substantial evidence does not support the ALJ’s
finding that Plaintiff’s condition has improved.
The ALJ also notes that “the record refers to non-compliance with treatment or
medication.” Id. at 93. “The administrative law judge’s reference to [the plaintiff’s]
failing to take his medication ignores one of the most serious problems in the treatment of
mental illness—the difficulty of keeping patients on their medication.” Spiva v. Astrue,
628 F.3d 346, 351 (7th Cir. 2010). The record reveals that Plaintiff struggled to find
effective medications without negative side effects. In March 2012, Plaintiff reported
that citalopram was ineffective for her depression and she thought it made things worse.
(Doc. #6, PageID #388). She also felt that hydroxyzine was not effective in easing her
anxiety. Id. She indicated in August 2012 that Risperdal was causing dry mouth and
fatigue, and its efficacy/benefit in alieving her psychological problems was decreasing.
Id. at 392. In January 2014, Plaintiff requested a new antidepressant because Zoloft was
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causing emotional blunting. Id. at 1364. In April 2014, she reported Vistaril caused
“worsening agitation.” Id. at 1359. She told a physician in May 2014 that she thought
Latuda was working against her. Id. at 1356. “[F]ederal courts have recognized a
mentally ill person’s noncompliance with psychiatric medications can be, and usually is,
the ‘result of the mental impairment itself and, therefore, neither willful nor without
justifiable excuse.’” Pate-Fires v. Astrue, 564 F.3d 935. 945 (8th Cir. 2009) (quoting in
part Mendez v. Chater, 943 F.Supp. 503, 508 (E.D. Pa. 1996) (other citations omitted).
There is no indication that ALJ Statum considered that Plaintiff’s noncompliance with
treatment was a symptom of her mental impairments.
The ALJ found, “The record does not reveal credible evidence of limitations
stemming from the alleged OCD.” (Doc. #6, PageID #94). It is unclear why the ALJ
would refer to Plaintiff’s OCD as “alleged” when she already found it to be a severe
impairment. Nevertheless, the record illustrates several significant signs and symptoms
of her OCD. Plaintiff reported that she cut off her hair because she wanted to look more
like her siblings. Id. at 854. She then continued to cut it over and over again because it
“feels like an obsession.” Id. at 860. She testified that she thought she was improving
but then indicated that she was simply unable to cut her hair because her husband hid the
scissors and razor. Id. at 121. She also washed her hands so many times that she had to
go to the hospital for hand irritation, cracking, and swelling. Id. at 708. During her
diagnostic assessment update at Eastway, she reported washing her hair so much that she
went through a bottle of shampoo in one to two days. Id. at 380. And, in August 2013, a
physician’s assistant at Eastway noted, “Patient seems to be overly focused on self
17

behaviors such as swallowing her phlegm and then refers to herself as gross.” Id. at 858.
These activities are not consistent with an ability to work.
The ALJ also determined that Plaintiff’s “assertions that she has visual and
auditory hallucinations are inconsistent with the examinations of record that disclose no
impairment of cognition, average intelligence, a full affect, good demeanor and a
euthymic mood . . . .” Id. at 94 (citations omitted). The record, however, reveals that
although Plaintiff had good days, she consistently reported hallucinations. For example,
in November 2012, Plaintiff presented to the emergency department with complaints of
suicidal ideation and hallucinations. Id. at 1174. She explained that she has been seeing
flies and hearing her own voice constantly. Id. The physician noted, “Patient makes
frequent trips to the ED but crisis worker felt she is worse than usual this time and a
potential risk to self.” Id. In February 2013, Plaintiff struggled with hallucinations. Id.
at 398. She explained, “the disorder messes my life. I cannot think straight. I am not
ahead of time. My mind is not in reality. . . . I am not eating, I am angry. I am not
myself and that voice is always in my head. I am not happy with the illness, the disorder
or whatever.” Id. And, “[w]hile her medication might help her control her condition, it
does not alleviate the possibility she will relapse.” Pates-Fires, 564 F.3d at 947.
The ALJ considered Plaintiff’s limited work history, noting she had minimal
earnings in 1999-2003, 2005, and 2007, and no earning in 2004 and 2006. (Doc. #6,
PageID #94). The ALJ concluded, “the minimal and sporadic work history revealed by
her earning record raises a question as to whether [Plaintiff’s] continuing unemployment

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is actually due to medical impairments.” Id. at 94. In reaching this conclusion, however,
the ALJ overlooks or ignores several key facts.
The record reveals that Plaintiff’s mental health problems did not begin suddenly
in 2008, when she alleges her disability began. Dr. Toca noted that when Plaintiff was
thirteen years old, she was removed from her mother’s custody and placed with an aunt.
Id. at 936. “[Plaintiff] said mood swings began around this time and worsened to include
depression [and] using drugs and alcohol . . . .” Id. Plaintiff also reported physical and
sexual abuse between the ages of ten and fifteen and being used for sex at age twenty. Id.
In August 2006, Plaintiff presented to Eastway for an assessment after “taking her
anger out” on her three-year-old daughter.” Id. at 353. They noted that she attempted
suicide in 2001. Id. Further, she reported hearing her own voice in her head making
negative comments; daily panic attacks; anxiety; trouble concentrating; and crying
episodes. Id. at 357. In November 2006, a psychiatrist evaluated her and diagnosed
major depressive disorder, single episode, chronic moderate; obsessive-compulsive
disorder; generalized anxiety disorder; post-traumatic stress disorder; panic disorder
without agoraphobia; sexual disorder, not otherwise specified; borderline personality
disorder; alcohol abuse; and cannabis abuse, early full remission. Id. at 386. There is no
indication that the ALJ considered this evidence before speculating that Plaintiff’s
unemployment was not due to her medical impairments.

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Substantial evidence not support the ALJ’s assessment of Plaintiff’s credibility.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3
B.

Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted 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 F.3d 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 lacks credibility, see
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 where the evidence of disability is overwhelming or

3

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s challenge to the ALJ’s assessment of the medical opinions and her hypothetical question posed
to the vocational expert is unwarranted.

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where the evidence of disability is strong while contrary evidence is lacking. Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of §405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, including the medical source opinions, under the applicable legal
criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and
to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether her application for
Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Mary I. Ritchie was under a
“disability” within the meaning of the Social Security Act;

3.

This matter be REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Report and Recommendations, and any decision adopting this
Report and Recommendations; and

4.

The case be terminated on the Court’s docket.

Date: February 13, 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 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 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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