Brown v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff was under a "disability"; this case be remanded to the Commissioner and the Administrative Law Judge for further consideration consistent with this Report; and, the case be terminated on the docket of this Court. Objections to R&R due by 7/6/2017. Signed by Magistrate Judge Sharon L. Ovington on 6-22-17. (mcm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NANCY A. BERRYHILL,
Commissioner of the Social
: Case No. 3:16-cv-00160
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
REPORT AND RECOMMENDATIONS1
A person’s eligibility to receive Disability Insurance Benefits or Supplemental
Security Income often breaks down when the Social Security Administration finds he or
she is not under a “disability.” See 42 U.S.C. §§ 423(a), (d), 1382c(a); see Bowen v. City
of New York, 476 U.S. 467, 469-70 (1986). Plaintiff Karleta Brown’s applications met
this fate mainly due to Administrative Law Judge (ALJ) Elizabeth A. Motta’s nondisability decision. Plaintiff brings the present case seeking judicial review of the ALJ’s
The case is presently before the Court upon Plaintiff’s Statement of Errors (Doc.
#8), the Commissioner’s Memorandum in Opposition (Doc. #11), Plaintiff’s Reply (Doc.
#12), and the administrative record (Doc. #7).
Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
On September 19, 2012, the date Plaintiff filed her applications, she was 44 years
old. She has at least a high-school education. Before she applied for benefits, she
worked as a production assembler.
During a hearing held by ALJ Motta, Plaintiff testified that she could not work
mostly due to panic attacks and depression. She has difficulty socializing with others and
feels “almost an intimidation being around other people.” (Doc. #7, PageID #101). She
explained that these problems started in her last job at Indianapolis Casting Corporation,
a company that makes engine blocks. She stopped working there when the stress became
too much, her panic attacks worsened, and her depression started. After that job, her
panic attack “progressed” and she cannot stay focused. Id. She takes mediations, Xanax
and Prosac, prescribed by her physician Dr. Nickras.
Plaintiff experiences frequent crying spells that last all day. She does not leave
her house very often and has stayed there for two weeks without leaving. She described
her isolation as follows:
I don’t have a life. I don’t have anything to talk to anybody about
and as far as wanting to talk to somebody about my problems, you
know, they don’t want to hear that you know, they—it kind of—it
brings me where I feel like I’m just a second class of citizen is how I
(Doc. #7, PageID #108). She described her house as her safe haven. Id. at 110. She
sometimes talks with her mother, but she spends most of her time in her bedroom. Id. at
104. When she has a good day, she talks more with her mother. On bad days, she shuts
down. Id. at 113. She estimated that three quarters of her days are bad.
At some point she suffered an injury to her left hand, causing her chronic pain. Id.
at 106, 110. Although not discussed in detail during her testimony, in 2004, Plaintiff
suffered amputation of two fingertips (left hand) in a work-related accident. Id. at 422.
The administrative record contains the opinions provided by Plaintiff’s long-term
treating physician Dr. Nickras, who began treating her in 2006. In June 2014, Dr.
Nickras answered interrogatories identifying Plaintiff’s diagnoses as (1) chronic neuritic
pain in her left upper extremity; (2) anxiety/panic disorder; (3) depression, and (4)
chronic analgesic use for chronic pain. (Doc. #7, PageID #568). Dr. Nickras opined that
Plaintiff’s “main problem is emotional and anxiety/panic disorders would not allow her to
work in a normal work environment.” Id. at 873. Dr. Nickras noted that she did not know
if Plaintiff could perform sedentary or light work, and she anticipated that Plaintiff would
be absent from work an average of three times per month. Id. at 874.
In May 2013, psychologist Dr. Griffiths interviewed and evaluated Plaintiff’s
mental work abilities at the request of the state agency. He diagnosed Plaintiff with
major depressive disorder, recurrent, moderate; panic disorder with agoraphobia;
posttraumatic stress disorder; and cocaine abuse in full remission. He explained that there
is ample evidence to support diagnoses of major depressive disorder, recurrent and panic
disorder with agoraphobia. Id. at 427. Dr. Griffith observed that Plaintiff was dysphoric.
She displayed a downcast facial expression and looked sad and tired. She spoke slowly.
She cried throughout the examination….” Id. at 425. She told Dr. Griffiths that she did
not trust anybody and felt like people were out to get her. Id. at 424. She also reported
that she worries, and Dr. Griffiths explained, “[s]he described symptoms associated with
panic attacks including accelerated heartbeat and trembling and an overwhelming sense
of fear. She estimated that she experiences one episode a week. Finally, Ms. Brown
reported symptoms associated with Posttraumatic Stress Disorder including intrusive
thoughts, flashbacks, nightmares, hypervigilance, avoidance and difficulty trusting
Dr. Griffith opined that Plaintiff’s emotional difficulties might interfere with her
ability to manage more complex multi-step instructions; her emotional difficulties may
interfere with her ability to pay attention and concentrate, especially over extended
periods of time; “[i]n addition, the limited energy, easy fatigability, poor frustration
tolerance and psychomotor retardation that often accompany depression may interfere
with task persistence and pace, as well.” Id. at 427. And, among other mental-work
limitations, Dr. Griffiths thought, “the stress and pressures associated with day-to-day
work activity might increase depressive symptomatology leading to crying, withdrawal
and slow work performance.” Id. at 428.
Previously, in November 2012, psychologist Dr. Boerger evaluated Plaintiff for
the state agency. His diagnoses included panic disorder with agoraphobia, posttraumatic
stress disorder, and major depressive disorder, recurrent, moderate. His not optimistic
prognosis explained, “Because of the longstanding nature of Ms. Brown’s emotional
difficulties, symptoms are likely to continue for the indefinite future.” Id. at 395. He
thought Plaintiff’s memory skills may vary, depending on her pain level; she has a
pattern of social avoidance, spends most of her time at home, and does not care to interact
with others. Id. at 396. He lastly opined that Plaintiff’s “anxiety and depression are
likely to limit her ability to tolerate work pressures in a work setting.” Id.
In December 2012, psychologist Dr. Umana reviewed the record and credited a
previous assessment by an ALJ under the Drummond rule. Id. at 170 (referring to
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997)). Dr. Hoffman wrote
that Plaintiff can perform simple, routine work that has minimal changes and is nonconfrontational; she can work around the general public but cannot directly deal with the
public; she can occasionally interact with supervisors and co-workers.” (Doc. #7,
PageID #170). In June 2013, psychologist Dr. Hoffman reviewed the record and
provided opinions identical to Dr. Umana’s. Id. at 152.
Turning to the Social Security Act, it defines a “disability” as physical or mental
impairments that are both “medically determinable” and severe enough to prevent the
applicant from (1) performing his or her past job and (2) engaging in “substantial gainful
activity” that is available in the regional or national economies. See 42 U.S.C. §§ 423(a),
(d), 1382c(a); see also Bowen, 476 U.S. at 469-70. ALJ Motta concluded that Plaintiff’s
medically determinable impairments fell outside this definition by conducting the 5-step
evaluation required by social security law. See 20 C.F.R. § 404.1520(a)(4). Her more
significant findings began with her conclusion that Plaintiff had many severe
impairments—status post-traumatic injury to her left hand with partial amputation of the
fingertips of her middle and ring fingers; reflux sympathetic disorder of her left hand, left
arm neuropathy, depression/dysthymic disorder, and anxiety—but her impairments did
not automatically constitute a disability. (Doc. #7, PageID #73).
The ALJ next assessed Plaintiff’s residual functional capacity or the most she
could do despite her impairments. See 20 C.F.R. § 404.1545(a); see also Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). Doing so, the ALJ found that
despite Plaintiff’s impairments, she could still perform a limited range of light work
involving, in part, “simple work; low stress work with no strict production quotas or fast
pace and only routine work with minimal changes and is non-confrontational; no contact
with the public as part of job duties; and only occasional contact with coworkers and
supervisors.” (Doc. #7, PageID #75). Plaintiff’s physical and mental limitations
precluded her from performing her past relevant work. Id. at 86.
The ALJ next found that given Plaintiff’s residual functional capacity plus her
high-school education (at least), work experience, and age, she could still perform a
significant number of jobs available to her in the national economy. The availability of
such jobs—“photo machine operator,” “mail clerk,” and “surveillance system monitor”—
meant that Plaintiff was not under a benefits-qualifying disability. Id. at 86-88.
The present judicial review determines whether ALJ Motta applied the correct
legal standards and whether substantial evidence supports her findings. 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). If she failed to apply the correct legal
criteria, her decision may be fatally flawed even if the record contains substantial
evidence supporting her findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009); see Bowen, 478 F.3d at 746; Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 546-47 (6th Cir. 2004). A conclusion is supported by substantial evidence when “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 v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007).
Plaintiff contends that the ALJ erred when assessing and placing no meaningful
weight on Dr. Nickras’ opinions concerning her mental-work abilities. The
Commissioner asserts that the ALJ properly discounted Dr. Nickras’ opinions by
recognizing that her opinions contained diagnoses rather than objective or clinical
A treating physician or psychologist’s opinion is entitled to controlling weight if it
is “well supported by medically acceptable clinical and laboratory diagnostic techniques
and ... is not inconsistent with other substantial evidence in [a claimant’s] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2017) (citation and internal
quotation marks omitted); see Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir.
2014). 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). This
same list of considerations applies when ALJs weigh the opinions of one-time examiners
or record-reviewing physicians and psychologists. See 20 C.F.R. § 404.1527(e)(2)(ii).
ALJs are also “required to provide ‘good reasons’ for discounting the weight given to a
treating-source opinion.” Gayheart, 710 F.3d at 376 (citing § 404.1527(c)(2).
ALJ Motta declined to place controlling or deferential weight, and instead placed
“little weight,” on Dr. Nickras’ opinions concerning Plaintiff’s mental-work limitations.
(Doc. #7, PageID #84). The ALJ wrote, “Although Dr. Nickras as a primary source has
seen the claimant since 1996, the undersigned gives little weight to her assessment
because it is unsupported by objective signs and findings in the preponderance of the
record.” Id. Yet, the ALJ did not buttress this with further information or explanation,
leaving it fatally ambiguous. The Sixth Circuit has explained:
[T]he conclusion that [the treating source’s] opinions “are not
well-supported by any objective findings” is ambiguous. One cannot
determine whether the purported problem is that the opinions rely on
findings that are not objective (i.e., that are not the result of medically
acceptable clinical and laboratory diagnostic techniques, see 20
C.F.R. § 404.1527(c)(2)), or that the findings are sufficiently
objective but do not support the content of the opinions.”
Gayheart, 710 F.3d at 377. Additionally, ALJ Motta did not explain what, if any,
specific portions of the mental health records are inconsistent with Dr. Nickras’
conclusions. This shortcoming, combined with the ALJ’s failure to discuss in what way
the Dr. Nickras’ opinions are “unsupported,” did not provide good reasons for declining
to place controlling weight on Dr. Nickras’ opinions. Other evidence, moreover,
compounds this problem—specifically, the opinions of Dr. Boerger and Dr. Griffiths,
which were largely consistent with the significant symptoms and mental status
abnormalities recorded by both Dr. Nickras (and, for that matter, Plaintiff’s mental health
counselor, Ms. Allen). See Doc. #7, PageID #s 391-96, 401, 408, 410, 417, 421-28, 4968
504, & 562. At a minimum, this evidence is not inconsistent with Dr. Nickras’ opinions.
Cf. Social Sec. Ruling 96-2p, 1996 WL 374188, *3 (July 2, 1996) (“Not inconsistent.
This is a term used to indicated that a well-supported treating source medical opinion
need not be supported directly by all of the other evidence (i.e., it does not have to be
consistent with all the other evidence) as long as there is no other substantial evidence in
the case record that contradicts of conflicts with the opinion.”).
The ALJ also observed, “In the June 2014 assessment, Dr. Nickras basically
refused to address any physical limitations, which is surprising given how much pain
medicine she has been prescribing over the years.” (Doc. #7, PageID #84). This
observation is not a valid reason for discounting Dr. Nickras’ opinions because it
misreads what Dr. Nickras wrote. Dr. Nickras did not say that her training deprived her
of the ability to address “any physical limitations…,” as the ALJ believed. Instead, Dr.
Nickras wrote, “I do not have the equipment or training to assess physical endurance as
questioned above.” (Doc. #7, PageID #574). Her reference to the physical abilities
“questioned above” pointed to the specific lifting and other limitations encompassed
within the definitions of sedentary and light work. Id. The ALJ unreasonably overlooked
the fact that the equipment Dr. Nickras lacked—doubtlessly referring to weight-lifting
equipment used to test patients’ lifting abilities—is not often found in primary care
physicians’ offices. The ALJ also unreasonably overlooked the training necessary for
anyone, including a physician, to be qualified to safely test a patient’s lifting, walking,
and standing abilities. And, Plaintiff correctly points out that Dr. Nickras’
acknowledgment that she lacks the equipment and training in this area constitutes honest
self-evaluation. Such honesty tends to show she was not exaggerating her observations
or opinions and therefore tends to support the support the validity of the information and
opinions she provided.2
The ALJ next rejected Dr. Nickras’ opinions about Plaintiff mental-work
limitations based on the specialization factor. See 20 C.F.R. § 404.1527(c)(5). This
appears in the ALJ’s recognition that Dr. Nickras “is not a mental health professional and
is unqualified to offer an opinion on the claimant’s mental functioning.” (Doc. #7,
PageID #84). Although Dr. Nickras is not a psychiatrist or psychologist, she treated
Plaintiff for anxiety/panic disorder and depression. She also had the benefit of observing
Plaintiff during her many office visits over many years. There is no indication in the
record that Dr. Nickras was unqualified to treat Plaintiff’s mental health problems by
prescribing medication and adjusting it over time. Substantial evidence, therefore, does
not support the ALJ’s use of the specialization factor to find Dr. Nickras unqualified to an
offer an opinion about Plaintiff’s mental functioning. See Kester v. Astrue, 2009 WL
275438, at *7 (S.D. Ohio 2009) (While the family doctor “did not specialize in mental
health treatment, his training and licensing as a family physician still made him qualified
to treat and prescribe such medications for Plaintiff.”).
The ALJ’s deferential weight analysis of Dr. Nikras’ opinion is also deficient in
The ALJ elsewhere observed that Dr. Nickras’ “avoidance of assessing the only area (physical) for which she
would have some reasonable qualification certainly does not bolster the undersigned’s confidence in her opinion.”
(Doc. #7, PageID #84). This is not a reasonable reading of Dr. Nickras’ decision to not provide an opinion about
the particular questions she was asked.
that she fails to meaningfully consider and explain how any of the regulatory factors
specialization factored into her assessment of Dr. Nickras’ opinions. Focusing on one
factor to the exclusion of others does not provide good reasons for placing little weight
on Dr. Nickras’ opinions particularly when the ALJ misread some of Dr. Nickras’
statements and when other factors favored placing more weight on this treating
physician’s opinions. Those other factors included the length and extent of Dr. Nickras’
treatment relationship with Plaintiff, the meaningful explanations Dr. Nickras’ provided
in support of her opinions, and the consistency of her opinions with other evidence—such
as the assessments of Drs. Boerger and Griffiths. See Gentry, 741 F.3d at 723, 727 (when
treating physician rule does not apply, “ALJs may not reject the opinion, but must apply
other factors to determine the weight to give the opinion ….”).
Further, ALJ Motta placed significant weight on the cursory opinions of recordreviewing psychologists, Dr. Umana and Dr. Hoffman, by finding their assessments
supported by objective signs and findings and that “the current record contains nothing
new to support marked or greater limitations that those set forth in the prior [ALJ’s]
decision, and thus there is not material change from the prior decision.” (Doc. #7,
PageID # 82). This constituted error because the ALJ did not apply the same level of
scrutiny to these record-reviewers’ opinions than she applied when rejecting Dr. Nickras’
opinions. “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.
In support of ALJ Motta’s decision, the Commissioner maintains that “specific
inconsistencies and aspects of the record conflicted with Dr. Nickras’ mental health
limitations.” (Doc. #11, PageID #650). Yet, in weighing Dr. Nickras’ opinions, ALJ
Motta did not specifically rely on the “inconsistencies and aspects of the record” the
Commissioner now identifies. The Commissioner instead looks elsewhere in the record,
such as ALJ Motta’s evidentiary summaries and discussions of Plaintiff’s credibility. To
this extent, the Commissioner improperly relies on post hoc rationalizations to substitute
for the ALJ’s deficient weighing of Dr. Nickras’ opinions. “In reviewing an ALJ's
findings and conclusions, this Court shall not ‘accept appellate counsel’s post hoc
rationalization for agency action in lieu of [accurate] reasons and findings enunciated by
the Board.’” Keeton v. Commissioner of Social Sec., 583 F. App’x 515, 524 (6th Cir.
2014) (quoting, in part, Hyatt Corp. v. N.L.R.B., 939 F.2d 361, 367 (6th Cir. 1991)). In
the Sixth Circuit, this principle is tempered by the possibility of harmless error for the
reasons set forth in Miller v. Berryhill, No. 3:16cv00094, 2017 WL 1021313, at *8 (S.D.
Ohio 2017). This, however, does not help the Commissioner because the inconstancies
and aspects of the record relied on do not show the ALJ’s errors were harmless. Indeed,
Dr. Nickras supported her opinions with explanations and were not so patently deficient
that an ALJ on remand could not possibly credit them. See Wilson, 378 F.3d at 547
(noting parenthetically, “Where ‘remand would be an idle and useless formality,’ the
courts are not required to ‘convert judicial review of agency action into a ping-pong
game.’” (citation omitted)).
The Commissioner also contends that the ALJ correctly followed the mandate
required by Drummond, 126 F.3d 837, and properly found that Plaintiff failed to
demonstrate that the record contains any credible change in her impairments since the
previous ALJ’s decision. This contention lacks merit due to the ALJ’s errors in weighing
the opinions provided by Plaintiff’s long-term treating physician Dr. Nickras, by
consulting one-time examiners Drs. Griffiths and Boerger, and the state agency recordreviewers Dr. Umana and Hoffman. Certainly if the dispositive weight is properly placed
on the opinions of Drs. Nickras, Griffiths, and Boerger, then the record would contain the
type of new and material evidence required by Drummond.
The Commissioner argues that the new evidence in the record was consistent with
the prior ALJ’s findings and inconsistent with the conclusion that Plaintiff had extensive
mental-work limitations. The Commissioner highlights that recent notes from Plaintiff’s
therapist reflect multiple mental-status abnormalities that were “similar to notes from the
previous period.” (Doc. #11, PageID #641) (citations omitted). Yet, the previous ALJ
described the therapy notes available for her review at that earlier time as containing no
mental-status examinations, and the previous ALJ based her assessment of Plaintiff’s
mental-work abilities, at least in part, upon the lack of this evidence. (Doc. #7, PageID
#134). This illustrates that even the “notes from the previous period”—which ALJ Motta
reviewed—let alone the subsequently produced and more recent records, constituted new
evidence that the previous ALJ did not have the opportunity to consider. Additionally,
the mental-status anomalies appearing in these more recent records were material to
Plaintiff’s mental-work limitations and undercut ALJ Motta’s conclusion that the
opinions of Drs. Nickras, Boerger, and Griffiths were all without any objective support.
In light of the above, Plaintiff’s requested remedy comes into focus. She seeks
either a judicial award of benefits or an order remanding this matter for further
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 Aonly where the evidence of disability is
overwhelming or where the evidence of disability is strong while contrary evidence is
lacking.” Felisky, 35 F.3d at 1041 (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
to sentence four of § 405(g) due to problems set forth above. On remand the ALJ should
be directed to review the evidence of record and determine anew whether Plaintiff was
under a benefits-qualifying disability pursuant to the applicable five-step sequential
evaluation procedure. The ALJ should be specifically instructed that his or her five-step
evaluation must, without limitation, re-assess the opinions provided by Drs. Nickras,
Griffiths, Boerger, Umana, and Hoffman; and re-assess Plaintiff’s residual functional
capacity, including combination her mental and physical impairments have on her work
abilities and limitations.
IT IS THEREFORE RECOMMENDED THAT:
The Commissioner=s non-disability finding be vacated;
No finding be made as to whether Plaintiff Karleta Brown was under a
“disability” within the meaning of the Social Security Act;
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
The case be terminated on the docket of this Court.
June 22, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen days because this Report is being served by one of
the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
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 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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