Walter v. Commissioner of Social Security

Filing 12

DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. The Commissioners non-disability finding is vacated; 2. No finding is made as to whether Plaintiff Samantha Walter was under a disability within the meaning of the Social Security Act; 3. This m atter is REMANDED to the Social Security Administration under sentence four of 42 U.S.C. § 405(g) for further consideration consistent with this Decision and Entry; and 4. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 9/1/17. (pb)

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

: Case No. 3:16-cv-144
:
:
: Magistrate Judge Sharon L. Ovington
:
(by full consent of the parties)
:
:
:
:
:
:

DECISION AND ENTRY
I.

Introduction
Plaintiff Samantha Walter brings this case challenging the Social Security

Administration’s denial of her application for Disability Insurance Benefits. She applied
for benefits on August 4, 2012, asserting that she could no longer work a substantial paid
job due to anxiety, depression, panic attacks, post-traumatic stress disorder, and obesity.
Administrative Law Judge (ALJ) Christopher L. Dillon concluded 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. #9), Plaintiff’s Reply (Doc. #10), and
the administrative record (Doc. #6).

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 Dillon’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a “disability” since July 25, 2012. She

was twenty-three years old at that time and was therefore considered a “younger person”
under Social Security Regulations. See 20 C.F.R. § 404.1563(c). She has a high school
education. See id. § 404.1564(b)(4).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Dillon that when she has a panic
attack, she gets pain in the left side of her chest and down the left side of her arm; her
mouth goes numb (sometimes); she breathes heavily; her pulse rate increases; she cries;
and she feels like she needs to get away from everyone. (Doc. #6, PageID #70). When
she has a panic attack at home, she goes into her bedroom. Id. If it gets too bad, she goes
to the hospital. Id. at 71. If she is playing outside with her child and sees a person, she
goes inside. Id. When asked why, she explained, “I’m just scared. Scared to be around
those people. Scared that they may know me, know my history, and my past, or if it’s a
stranger I just get scared that they may notice something about me and confront me, or
just in general the fear of being around any type of person other than those of close
relation.” Id. at 71-72. If she is at someone else’s house, she goes into the bathroom,
outside, or away from people. Id. at 71. She does not want anyone to see her have a
panic attack. Id. “Sometimes when I’m alone and I have a panic attack, I’m afraid of
2

being around people, but I’m also afraid of being alone, and having a panic attack, and
not being able to get anywhere, and feeling like I’m going to die.” Id. at 70.
Plaintiff’s panic attacks sometimes have a specific trigger. Id. at 66. For example,
when she has a list of chores, she will “[m]ost always” have an attack. Id. at 72. A sink
full of dishes, a load of laundry in the dryer, a really fussy baby, or a cluttered/dusty
home may also cause one. Id. But, a majority of the time, there is no trigger. Id. at 66.
Even if she is watching TV or is by herself, she has panic attacks. Id. They usually last
one to two hours and happen five to six times in a week. Id.
Plaintiff’s mother, who lives five minutes away, and her mother-in-law, who also
lives very close, help Plaintiff with her child. Id. at 65. Because her panic attacks come
on very quickly, “[a]s soon as I feel any tightness in my chest, or the symptoms I know
that are going to start causing me to have a panic attack, I will call [my mom] right away
before it goes into a full-blown panic attack.” Id. at 67. For example, when her child
starts crying, her anxiety starts, and she calls one of them to help her with him until she
can calm down. Id. at 65.
Plaintiff is also agoraphobic. Id. at 67. It “came along with the panic.” Id. She is
still able to go where there are people, but she cannot do it by herself—she always takes
someone with her. Id. But even when she has people with her, she still has panic attacks.
Id. at 74. If she is in a store with someone and she starts feeling one, she will give the list
to the other person and go to the car to be by herself. Id. At least once or twice per
week, she will go to a store with someone but will not be able to make it into the front
door. Id.
3

Plaintiff is able to drive but is very scared to. Id. at 66. The fear started when she
started having panic attacks. Id. She also has many other fears including: drinking
caffeine; being in her house with the doors unlocked; going outside; running into
someone she knows; being around people when she is having a panic attack; and
worrying that the other person will notice that she is anxious or panicky. Id. at 69.
She explained that she would not be able to work in a job where she did not have
to deal with the public and sat in a cubical all day because “My focus is very off. I
require a lot of medication throughout the entire day. So, I would have to constantly have
medication with me. If there was a complication, say if I was in a cubical, a computer,
and there was a small complication, a very small problem could trigger me very, very
quick.” Id. at 69-70.
B.

Medical Opinions
i.

Irfan Dahar, M.D.

Plaintiff’s treating psychiatrist, Dr. Dahar, first saw Plaintiff on March 11, 2013,
and sees her approximately once per month. Id. at 406. On July 1, 2013, he completed a
mental impairment questionnaire. Id. at 406-09. Dr. Dahar diagnosed agoraphobia with
panic disorder and generalized anxiety disorder and assigned a current global assessment
of functioning score of 40. Id. at 406. He identified several of her signs and symptoms
including: poor memory, sleep disturbance, personality change, mood disturbances,
emotional lability, recurrent panic attacks, anhedonia or pervasive loss of interests,
feelings of guilt/worthlessness, difficulty thinking or concentrating, social withdrawal or

4

isolation, decreased energy, intrusive recollections of a traumatic experience, persistent
irrational fears, generalized persistent anxiety, and hostility/irritability. Id.
Dr. Dahar opined that Plaintiff has “severe to debilitating anxiety [with] panic
attacks, can no longer drive or go into public places alone. Panics even when others are
driving. Depression is moderate [and] marked by loss of interests, poor functioning at
home, [and] low self esteem.” Id. at 407. Additionally, she has extreme difficulties in
maintaining social functioning. Id. at 408. She is also extremely limited in her ability to
sustain an ordinary routing without special supervision; work in coordination with or in
proximity to other without being distracted by them; complete a normal workday or
workweek without interruption from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; interact
appropriately with the general public; and travel in unfamiliar places or use public
transportation. Id. at 408-09. She has marked restrictions of activities of daily living. Id.
at 408.
Further, Dr. Dahar noted that her “condition is expected to be a long-standing
problem [and] progress is slow.” Id. at 407. Her prognosis is “guarded.” Id. Dr. Dahar
opined Plaintiff would be absent from work more than three times per month due to her
impairments and treatment. Id. at 408.
ii.

Beth Vehre, M.D.

Dr. Vehre, Plaintiff’s treating primary-care physician, completed interrogatories
on October 23, 2013. Id. at 690-95. Dr. Vehre last saw Plaintiff on October 21, 2013,

5

and Plaintiff has been their patient since August 22, 2003. 1 Id. at 690. Dr. Vehre opined
that Plaintiff’s panic disorder is “complex [and] difficult to control despite counselling,
meds, [and] psychiatric management.” Id. at 691. Dr. Vehre stopped treating Plaintiff’s
panic disorder in February 2013 when she began treatment for her mental impairments
with Dr. Dahar. Id.
Dr. Vehre opined Plaintiff could not be prompt and regular in attendance because
she would have frequent absences due to her panic disorder. Id. at 691. Additionally, she
could not respond appropriately to supervision, co-workers, and customary work
pressures. Id. at 692. She has difficulty tolerating daily life stresses. Id. She could
sustain attention and concentration on her work but only when she is not having a panic
episode. Id. She can relate predictably in social situations, “but not in [a] good way, may
be predicted [to] have panic episode.” Id. Plaintiff is not able to complete a normal
workday or workweek without interruption from psychologically and/or physically based
symptoms and perform at a consistent pace without unreasonable numbers and lengths of
rest periods. Id. at 695. Dr. Vehre explained that Plaintiff has “at least daily panic
episodes [and] constant anxiety.” Id.
iii.

Timothy Smith, LPCC

Mr. Smith, Plaintiff’s treating counselor since September 2009, completed three
mental impairment questionnaires. He indicated that he sees her weekly, and she is very
compliant with treatment. Id. at 375, 378. He opined, “With medication management
1

Dr. Vehre noted, “Our patient since 8/22/2003.” (Doc. #6, PageID #690). It is unclear if that is when
Dr. Vehre began treating her or if that is when Plaintiff began treatment at their practice.

6

[and] counseling[,] symptoms have continued to persist. … With all the work Samantha
is doing[,] she continues to be severely impacted by anxiety [and] panic.” Id. at 403.
Mr. Smith noted Plaintiff has recurrent panic attacks, social withdrawal/isolation,
and generalized persistent anxiety. Id. at 402. He indicated Plaintiff’s signs and
symptoms of anxiety include heart palpitations, difficulty breathing, nervous stomach,
sweating, paralyzing fear, and impending doom. Id. at 374. She is, at times, “easily
distracted” by anxiety and its symptoms. Id. at 375.
Plaintiff’s ability to adapt to situations is poor. Id. Additionally, she has a poor
stress tolerance and needs frequent breaks to manage stress/anxiety. Id. at 377. On
average, Plaintiff’s impairments and treatment would cause her to be absent from work
more than three times per month. Id. at 404. She has marked deficiencies of
concentration, persistence, or pace resulting in failure to complete tasks in a timely
manner; moderate difficulties in maintaining social functioning, and slight restrictions of
activities of daily living. Id.
iv.

Alan R. Boerger, Ph.D.

Dr. Boerger evaluated Plaintiff on December 18, 2012. Id. at 293-98. He
diagnosed panic disorder with agoraphobia and depressive disorder, not otherwise
specified, and assigned a global assessment of functioning score of sixty. Id. at 297. He
opined, “Ms. Walter appears to have chronic problems with anxiety but more recent onset
of a panic disorder. She does have a history of traumatic experiences early in life in the
form of witnessing a rape and being a victim of rape. There also appear to be indications
of chronic mild depression.” Id. Additionally, “Because of the longstanding nature of
7

her emotional difficulties, emotional symptoms are likely to be present for the indefinite
future.” Id.
Dr. Boerger did not find any indications of a memory impairment. Id. at 298. He
noted that she reported “being distracted at times by her own thoughts and worry[,]” but
she only made three errors in performing serial sevens. Id. She also reported “some
guardedness and slowness to trust others.” Id. However, she related in an appropriate
manner with Dr. Boerger, and he did not find any other indications of difficulty relating
to others. Id. He concluded, “Ms. Walter’s anxiety and depression may limit her ability
to tolerate work pressures in the work setting.” Id.
v.

Robyn Hoffman, Ph.D.

Dr. Hoffman reviewed Plaintiff’s records on April 26, 2013. Id. at 93-106. She
found Plaintiff has one severe impairment: an anxiety disorder; and two non-severe
impairments: obesity and an affective disorder. Id. at 99-100. She has a moderate
restriction of activities of daily living; moderate difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration, persistence, or pace; and
no repeated episodes of decompensation. Id. at 100. Dr. Hoffman opined, “[Plaintiff] is
easily distracted by anxiety and situations. Poor coping and responses to stress. … Her
tasks should not require her to fill large quotas or work at a fast-pace ….” Id. at 102.
She “is able to maintain superficial interaction with others in the workplace.” Id. at 103.
And, because her “symptoms may be exacerbated by stressful situations[,] [s]he should
perform work that has infrequent changes and does not have fast paced demands.” Id.

8

III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits 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. § 423(a)(1)(E). 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. § 423(d)(1)(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

9

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 Dillon to evaluate the evidence connected to

Plaintiff’s application for benefits. He did so by considering each of the five sequential
steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520. He reached
the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since July
25, 2012.

Step 2:

She has the severe impairments of obesity; an affective disorder; and
an anxiety disorder.

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.

10

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 “work that involves lifting no more than
50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds; no more than pushing or pulling of similar
amounts; sitting, standing, and walking for up to 6 hours each; no
more than occasional interaction with supervisors and coworkers; no
more than incidental/superficial contact with the public, such as
sharing common areas like hallways and elevators; and no more than
simple, routine, repetitive tasks performed with a pace and stress
tolerance that allows for no production quotas.”

Step 5:

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

(Doc. #6, PageID #s 41-51). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 50.
V.

Discussion
Plaintiff contends that the ALJ erred in rejecting the opinions of Plaintiff’s

treatment providers and failed to adequately explain the weight he assigned the opinions
of the State agency consultants. The Commissioner maintains that the ALJ reasonably
weighed the medical opinions of record.
A.

Medical Opinions

Social Security Regulations recognize several different categories of medical
sources: treating physicians, nontreating yet examining physicians, and nontreating yet
record-reviewing physicians. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th
Cir. 2013).
As a general matter, an opinion from a medical source who
has examined a claimant is given more weight than that from
a source who has not performed an examination (a
“nonexamining source”), and an opinion from a medical
11

source who regularly treats the claimant (a “treating source”)
is afforded more weight than that from a source who has
examined the claimant but does not have an ongoing
treatment relationship (a “nontreating source”). In other
words, “[t]he regulations provide progressively more rigorous
tests for weighing opinions as the ties between the source of
the opinion and the individual become weaker.”.
Id. (quoting in part Soc. Sec. R. 96-6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2,
1996), and citing 20 C.F.R. §§ 404.1502, 404.1527(c)(1)–(2)). To effect this hierarchy,
the Regulations adopt the treating physician rule. The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
Id. at 376 (6th Cir. 2013) (quoting in part 20 C.F.R. § 404.1527(c)(2)); see Gentry, 741
F.3d at 723.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory
“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the
weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to

12

any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
In ALJ Dillon’s discussion of the weight he assigned to the opinions of Plaintiff’s
treating physicians, Dr. Dahar and Dr. Vehre, he failed to refer to the treating physician
rule or either of its conditions. The ALJ’s failure to address the treating physician rule
erroneously ignores the hierarchy established by the Regulations and fails to give any
deference to treating physician’s opinions. This constitutes error. See 20 C.F.R. §
404.1527(c)(2) (“[W]e give more weight to medical opinions from your treating sources,
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 ….”).
Nevertheless, ALJ Dillon did provide some reasoning for the weight he assigned
their opinions.
Dr. Dahar
ALJ Dillon assigned Dr. Dahar’s medical source statement “little weight.” (Doc.
#6, PageID #48). Although the ALJ did not refer to Dr. Dahar by name, the ALJ did
acknowledge that he is Plaintiff’s treating psychiatrist. And, he found Dr. Dahar’s
opinion that Plaintiff has marked difficulties in performing activities of daily living and
extreme difficulties in maintaining social functioning was “contrary to other significant
evidence of record, including the claimant’s own statements and testimony concerning

13

her ability to perform activities of daily living.” Id. The ALJ provided no further
explanation or citation to the record.
Although the ALJ did not provide an explanation for the weight he assigned Dr.
Dahar’s opinion, earlier in his decision, he found that Plaintiff has no restriction in
activities of daily living: “She has reported that she is able to be the primary caregiver
for her infant son and that she is capable of performing household chores, preparing
meals, and maintaining her personal care.” Id. at 45. This summary, however, is
somewhat misleading.
Under the Regulations,
Activities of daily living include adaptive activities such as
cleaning, shopping, cooking, taking public transportation ….
In the context of your overall situation, we assess the quality
of these activities by their independence, appropriateness,
effectiveness, and sustainability. We will determine the
extent to which you are capable of initiating and participating
in activities independent of supervision or direction.
We do not define “marked” by a specific number of different
activities of daily living in which functioning is impaired, but
by the nature and overall degree of interference with function.
For example, if you do a wide range of activities of daily
living, we may still find that you have a marked limitation in
your daily activities if you have serious difficulty performing
them without direct supervision, or in a suitable manner, or
on a consistent, useful, routine basis, or without undue
interruptions or distractions.
20 C.F.R. § 404, Subpt. P, App. 1, 12.00(C)(1) (emphasis added).
The activities emphasized by the ALJ illustrate Plaintiff’s limitations rather than
her abilities to perform activities of daily living. For example, although Plaintiff is the
“primary caregiver for her infant son,” her mother and mother-in-law help “[a]lmost
14

every other day.” (Doc. #6, PageID #65). And, a list of household chores will“[m]ost
always” trigger a panic attack. Id. at 72. She “might be able to make [it] through the first
couple of tasks, but after that [she] will have a panic attack.” Id. These limitations are
consistent with Dr. Dahar’s opinion that Plaintiff has marked difficulties in performing
activities of daily living. This is a fatal flaw in the ALJ’s evaluation of Dr. Dahar’s
opinion. See Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011) (“the ALJ’s focus on the
claimant’s ability to do certain activities in discounting the treating source’s opinion does
not constitute “good reasons” for doing so when the claimant’s testimony and other
record evidence contradict the ALJ’s finding.”) (citing Johnson v. Comm’r Soc. Sec., 652
F.3d 646, 652 (6th Cir. 2011)).
The ALJ further found that Plaintiff has no more than moderate difficulties in
social functioning: “She reported that she has panic attacks around crowds of people and
that she tries not to leave her home unaccompanied. However, she has indicated that she
is able to go shopping in stores and she has reported having a good relationship with
family members, especially her mother and mother-in-law.” Id. at 45 (citing Ex. 2F
[PageID #s 293-99]). Again, this is somewhat misleading.
The Regulations explain,
Social functioning refers to your capacity to interact
independently, appropriately, effectively, and on a sustained
basis with other individuals. Social functioning includes the
ability to get along with others, such as family members,
friends, neighbors, grocery clerks, landlords, or bus drivers.
You may demonstrate impaired social functioning by, for
example, a history of altercations, evictions, firings, fear of
strangers, avoidance of interpersonal relationships, or social
isolation. You may exhibit strength in social functioning by
15

such things as your ability to initiate social contacts with
others, communicate clearly with others, or interact and
actively participate in group activities. …
20 C.F.R. § 404, Subpt. P, App. 1, 12.00(C)(2).
The ALJ’s summary of Plaintiff’s social interactions overstates her abilities. For
example, Plaintiff did report being able to shop in stores. However, she also stated that
she has to have someone with her, she sometimes has to leave the store in the middle of
shopping, and she sometimes cannot even make it into the store before starting to feel
panic. (Doc. #6, PageID #74). She also reported having a close relationship with her
mother and mother-in-law but, other than her husband and child, they are the only people
with whom she has a close relationship. Additionally, Dr. Boeger noted that she does not
usually have any visitors, she does not belong to any clubs, and she will walk out of a
place that has too many people. Id. at 295.
The ALJ erred by selecting specific portions of the record that supported his
conclusions and omitting conflicting evidence. “[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).

16

This likewise leaves the ALJ’s decision without “good reasons” for assigning Dr.
Dahar’s opinions “little weight”—another error. See Soc. Sec. R. 96-2p, 1996 WL
374188, at *5 (“[T]he notice of the determination or decision must contain specific
reasons for the weight given to the treating source’s medical opinion ….”); see also
Gayheart, 710 F.3d at 377 (“The failure to provide ‘good reasons’ for not giving [the
treating physician’s] opinions controlling weight hinders a meaningful review of whether
the ALJ properly applied the treating-physician rule that is at the heart of this
regulation.”) (citing Wilson, 378 F.3d at 544).
Dr. Vehre
ALJ Dillon similarly assigned Dr. Vehre’s medical source statement “little
probative weight.” (Doc. #6, PageID #48). The ALJ noted that her “opinion concluded
that the claimant is not capable of maintaining regular work attendance, responding
appropriately to supervision, withstanding normal work pressures, behaving in an
emotionally stable manner, or completing a normal work day and work week without
interruption from psychologically based symptoms.” Id. The ALJ found that those
“limitations are not reflected in the claimant’s primary care treatment notes that
consistently recorded her as having an appropriate affect and demeanor with normal
thought process and psychomotor functioning.” Id. (citing Exhibits 6F 1-13 [PageID #s
333-45] and 15F at 3 [PageID #653]). The ALJ also noted that Dr. Vehre had not treated
Plaintiff for her mental impairments since February 2013. Id. at 48.
The records cited by the ALJ do refer to appropriate affect and demeanor and
normal psychomotor functioning. However, those references appear in only a small
17

portion of the notes from those appointments—and are a vast distance away from the full
picture of those appointments. For example, on July 11, 2012, and September 12, 2012,
Dr. Vehre noted, “appropriate affect and demeanor; normal psychomotor function;
speech pattern: [difficult] to stay on one topic of discussion, continually bouncing topics
around; thought/perception: denies suicidal ideation[.]” Id. at 340, 343 (emphasis
added). But, perhaps more significantly, Dr. Vehre also indicated, “Patient to be
evaluated for panic disorder. Her anxiety disorder was originally diagnosed 2 years ago.
Her symptom complex includes apprehension, chest pain, a choking or smothering
sensation, feeling of impending doom, hyperventilation, insomnia, palpitations, increased
perspiration, shortness of breath, tachycardia, [shaky], nausea, and tearful. True panic
attacks occur in addition to generalized anxiety. The frequency [of her] symptoms is
nearly constant….” Id. at 342.
On December 29, 2012, and February 28, 2013, Dr. Vehre’s notes changed
slightly: “appropriate affect and demeanor; normal psychomotor function;
thought/perception: denies suicidal ideation[.]” Id. at 334, 337. On December 29, 2012,
Dr. Vehre also noted, “Referral initiated to licensed clinical counsellor, to continue
sessions. She knows I would like psychiatrist referral but right now as meds are limited
due to pregnancy the impact of medications are limited by pregnancy and lactation
limitations….” Id. at 338. Dr. Vehre also prescribed a new medication, BuSpar. Id. On
February 28, 2013, Dr. Vehre increased Plaintiff’s dose of BuSpar from twice per day to
three times per day. Id. at 335. She further indicated Plaintiff was unemployed and
“feels overwhelmed by panic, unable to work.” Id. at 333.
18

The ALJ’s narrow interpretation of Plaintiff’s treatment notes ignores evidence
that detracts from his conclusion. This constitutes error. See Brooks v. Comm’r of Soc.
Sec., 531 F. App’x 636, 641 (6th Cir. 2013).
Last, the ALJ is correct that Dr. Vehre had not treated Plaintiff for her mental
impairments since February 2013—approximately eight months before she provided her
assessment. However, it is equally important to note that Dr. Vehre indicated Plaintiff
had been a patient of her practice since August 22, 2003. (Doc. #6, PageID #690). And,
Dr. Vehre treated Plaintiff’s mental conditions from at least July 7, 2010 until February
2013. Id. at 679.
The reasons provided by ALJ Dillon for discounting Dr. Vehre’s opinion are not
supported by substantial evidence and do not constitute “good reasons” under the
Regulations. See Soc. Sec. R. 96-2p, 1996 WL 374188, at *5; Gayheart, 710 F.3d at 377.
Dr. Hoffman
ALJ Dillon observed that the assessment of State agency record-reviewing
physician, Dr. Hoffman “concluded that the claimant’s mental impairment symptoms
result in no more than moderate work limitations and that she is able to perform work
with no production quotas, infrequent work changes, and no more than superficial
interactions.” (Doc. #6, PageID #47). He assigned the opinion “great probative weight”
because it “is based on a review of the medical evidence of record and the expressed
limitations are consistent with the record as a whole.” Id.
ALJ Dillon is correct that Dr. Hoffman’s opinion is based on a review of medical
evidence. Indeed, that is all it is based on, as Dr. Hoffman did not examine or treat
19

Plaintiff. Dr. Hoffman’s opinion, however, is not based on a review of all of the medical
evidence. Most significantly, he did not review the opinions of Plaintiff’s treating
physicians, Dr. Vehre and Dr. Dahar, or the (most recent) opinion of Plaintiff’s treating
counselor, Mr. Smith.2 The ALJ’s failure to consider this shortcoming constitutes error.
See Blakley, 581 F.2d at 409.
The ALJ’s finding that Dr. Hoffman’s opinion was consistent with the record as a
whole is conclusory because the ALJ failed to provide any further explanation or citation
to the record.
The ALJ did not discuss any other factors. This constitutes error because “[u]nless
a treating source’s opinion is given controlling weight, the administrative law judge must
explain in the decision the weight given to the opinions of a State agency medical or
psychological consultant….” 20 C.F.R. § 404.1527(e)(2)(ii).
In addition, the ALJ erred by failing to apply the same level of scrutiny to
reviewing psychologists’ opinions as he applied to treating source’s opinion. See
Gayheart, 710 F.3d at 379 (citing 20 C.F.R. § 404.1527(c); Soc. Sec. R. 96-6p, 1996 WL
374180, at *2) (“A more rigorous scrutiny of the treating-source opinion than the
nontreating and nonexamining opinions is precisely the inverse of the analysis that the
regulation requires.”). The ALJ criticized Dr. Vehre’s opinion because she had not
treated Plaintiff for her mental impairments since February 2013, but he does not
recognize that Dr. Hoffman never examined or treated Plaintiff.
2

Mr. Smith, although not an “acceptable medical source,” was an “other source” who was entitled to
consideration in light of his expertise and treatment relationship with Plaintiff. See Cole, 661 F.3d at 939.

20

Dr. Boerger
The ALJ found that the evaluation of the consultative psychological examiner, Dr.
Boerger, “concluded that the claimant has difficulty with being distracted and a limited
ability to tolerate work pressures.” (Doc. #6, PageID #47). He assigned it “great
weight” because “[t]he expressed limitations and abilities in this opinion are based on a
direct observation and examination of the claimant ….” Id.
The ALJ is correct that Dr. Boerger’s opinions are based on his observation and
examination of Plaintiff. It is unclear how this fact alone supports the ALJ’s conclusion
that Dr. Boerger’s opinion is entitled to great weight. This is particularly puzzling
because the ALJ failed to recognize that both of Plaintiff’s treating physicians based their
opinions on their observations and numerous examinations of Plaintiff. “A more rigorous
scrutiny of the treating-source opinion than the nontreating and nonexamining opinions is
precisely the inverse of the analysis that the regulation requires.” Gayheart, 710 F.3d at
379 (citing 20 C.F.R. § 404.1527(c); Soc. Sec. R. 96-6p, 1996 WL 374180, at *2)
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.
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
21

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
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
Disability Insurance Benefits should be granted.
22

IT IS THEREFORE ORDERED THAT:
1.

The Commissioner’s non-disability finding is vacated;

2.

No finding is made as to whether Plaintiff Samantha Walter was under a
“disability” within the meaning of the Social Security Act;

3.

This matter is REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Entry; and

4.

The case is terminated on the Court’s docket.

Date: September 1, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

23