Ferryman v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff April S. Ferryman was under a "disability" within the meaning of the Social Security Act; this matter be REMA NDED 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 6/5/2017. Signed by Magistrate Judge Sharon L. Ovington on 5/22/2017. (lek)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
: Case No. 3:16-cv-183
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
REPORT AND RECOMMENDATIONS1
Plaintiff April Ferryman brings this case challenging the Social Security
Administration’s denial of her applications for period of disability, Disability Insurance
Benefits, and Supplemental Security Income. She applied for benefits on November 28,
2012, asserting that she could no longer work a substantial paid job. 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. #6), the
Commissioner’s Memorandum in Opposition (Doc. #9), Plaintiff’s Reply (Doc. #11), the
administrative record (Doc. #5), and the record as a whole.
Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
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.
Plaintiff asserts that she has been under a “disability” since November 1, 2012.
(Doc. #5, PageID #275). She was twenty-seven years old at that time and was therefore
considered a “younger person” under Social Security Regulations. See 20 C.F.R. §§
404.1563(c), 416.963(c). She has a high school education. See id. §§ 404.1564(b)(4),
Plaintiff testified at the hearing before ALJ Dillon that when she is depressed, she
has days that she does not want to get up, leave her house, or do anything. (Doc. #5,
PageID #80). If she is working and gets depressed, she calls in sick. Id. She also
“go[es] through very different moods at a time.” Id. at 81. She explained that one word
might change her mood from happy to angry within seconds. Id. Additionally, when
something reminds her of her past, she either gets angry or starts crying. Id. When those
episodes happen at work, she makes an excuse to leave early. Id. When she is
uncomfortable around a person, “it freaks her out” and she has to go home or to a
different area of her house. Id. at 83. Plaintiff was diagnosed with bipolar disorder. Id.
at 87. Her symptoms include racing thoughts and impulsive behavior. Id.
Some of Plaintiff’s mental health problems—specifically, her PTSD—worsened
after the birth of her child. Id. at 83. Her PTSD, concern, and worry are related to being
raped as a child. Id. at 84. For many years, she self-medicated with marijuana and
cocaine but then she was arrested and stopped using drugs. Id. At the time of the
hearing, she had been clean for just short of three years and three months. Id. at 84-85.
Now that she is not using drugs, she has to deal with the kind of thoughts that bother her.
Id. at 85. Her medication helps but “they’re still there and [she] can’t just do something
to make [herself] forget.” Id.
Due to childhood trauma, Plaintiff is uncomfortable leaving her child with men
and only she or her mother care for her child. Id. at 83.
Q Am I to understand  that [your fiancée] is the father of
your child; is that right?
A Yes, sir.
Q And yet you have issues in even allowing him to take care
of his child?
A To me, family is just as evil as a stranger.
Q That’s how this all started for you, wasn’t it?
Id. at 85.
Plaintiff has several crying spells throughout the day. Id. She also isolates herself
at least twice per day. Id. at 86. Before her daughter was born, she locked herself into
her room for twelve hours at a time with her bed in front of the door so no one could get
in. Id. Since her child was born, she isolates herself for two to three hours at one time.
Id. During that time, her daughter is either with her or with her mom. Id.
Plaintiff testified that she has asthma and two bulging discs in her lower back. Id.
at 82. She also has problems with her left knee. Id. Her lower back pain began when
she twenty years old, and she had an MRI in 2012. Id. at 88. She began having hip pain
with tingling down her legs after her daughter was born in September 2013. Id. At the
time of the hearing, she was in physical therapy. Id. at 83.
Plaintiff is able to do dishes, but she sometimes has to leave them and come back
later to finish them. Id. at 82. She does laundry occasionally. Id. However, if her
anxiety escalates, she will leave clothes in the washer for several days and then will have
to rewash them. Id. at 82-83. Plaintiff estimated that she can stand for approximately
fifteen minutes at a time, walk one and one-half to two blocks at a time, sit for at least an
hour, and has to watch lifting things over twenty-five pounds. Id. at 89. Further, her
mood would prevent her from making it to work half the time. Id. at 90.
Plaintiff worked part time as a cashier in January 2013. Id. at 81. She only
worked four to four and one-half hours in a day. Id. When she had to run the cash
register and make pizzas at the same time, she got overwhelmed and left things like the
oven on. Id. She was let go when she began having pregnancy complications. Id. at 82.
i. Linda J. Griffith, M.D., Tracy Detwiler, PA-C, & Callie
In May 2014, Dr. Griffith, Ms. Detwiler, and Ms. Hawkins completed a mental
impairment questionnaire. Id. at 581-84. They diagnosed Plaintiff with bipolar disorder,
most recent episode unspecified; post-traumatic stress disorder; and attention deficit
hyperactivity disorder, combination type. Id. at 581. They assigned a global assessment
of functioning (GAF) score of fifty-six. Id. Their clinical findings included depressed
mood, flat affect, tearful, nightmares and flashbacks of past trauma, irritable, racing
thoughts, and easily distracted. Id. at 582. Plaintiff’s signs and symptoms included:
appetite disturbance with weight change, mood disturbance, delusions or hallucinations,
recurrent panic attacks, feelings of guilt/worthlessness, difficulty thinking or
concentrating, decreased energy, manic syndrome, and intrusive recollections of a
traumatic experience. Id. at 581.
They opined that her prognosis was guarded to poor, and her response to treatment
was fair. Id. at 582. She has a low stress tolerance and very poor adaptation skills. She
would likely miss four or more days per month in a job setting due to mental health
symptoms. Id. They opined she has extreme limitations in her ability to sustain an
ordinary routine without special supervision; work in coordination with and in proximity
to others without being distracted by them; complete a normal workday or workweek
without interruptions from psychological-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
a work setting. Id. at 583-84. They also indicated several areas where Plaintiff
experiences marked limitations such as her ability to understand and remember detailed
instructions and perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances. Id. at 583.
ii. Callie Hawkins, LISW-S
Ms. Hawkins completed interrogatories related to her treatment of Plaintiff on
April 14, 2014. Id. at 580. She began treating Plaintiff for bipolar disorder, posttraumatic stress disorder, and ADHD on November 20, 2012. Id. at 571-72. Ms.
Hawkins opined, “[Plaintiff’s] mental health diagnosis make it more difficult to tolerate
the impact of her physical disabilities.” Id. at 572. Further, Plaintiff is not capable of
being prompt and regular in attendance; responding appropriately to supervision, coworkers, and customary work pressures; sustaining attention and concentration;
understanding, remembering, and carrying our simple work instructions; behaving in an
emotionally stable manner; relating predictably in social situations; demonstrating
reliability; maintaining concentration and attention for extended periods; performing
activities within a schedule, maintaining regular attendance, being punctual within
customary tolerances; and accepting instructions and responding appropriately to
criticism from supervisors. Id. at 574-79. Ms. Hawkins noted Plaintiff struggles with
attendance in all settings, has a history of angry outbursts and conflicts at work, and
experiences mood fluctuations that make reliability challenging. Id. Ms. Hawkins found
that Plaintiff has a moderate restriction of activities of daily living; moderate deficiencies
of concentration, persistence, or pace; and marked difficulties in maintaining social
functioning. Id. at 580.
iii. Caroline Lewin, Ph.D., & Irma Johnston, Psy.D.
Dr. Lewin reviewed Plaintiff’s records in March 5, 2013. Id. at 101-11. She
opined Plaintiff has two severe impairments: affective disorder and anxiety disorder, and
one non-severe impairment, substance addiction disorder. Id. at 105. Plaintiff has a mild
restriction of activities of daily living; moderate difficulties in maintaining social
functioning; moderate deficiencies of concentration, persistence, or pace; and no repeated
episodes of decompensation. Id. Dr. Lewin opined Plaintiff is able to perform three to
four step tasks that do not have strict time or production demands, which require no more
than occasional, superficial interactions with others, in a relatively static environment
with few changes. Id. at 108-09.
On June 20, 2013, Dr. Irma Johnston reviewed Plaintiff’s records and affirmed Dr.
Lewin’s conclusions. Id. at 126-36.
Standard of Review
The Social Security Administration provides Disability Insurance Benefits and
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. §§ 423(a)(1), 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. §§ 423(d)(1)(A), 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
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)).
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, 416.920.2
He reached the following main conclusions:
Plaintiff has not engaged in substantial gainful employment since
November 1, 2012.
She has the severe impairments of respiratory disorder, low-back
disorder, left-knee disorder, obesity, affective disorder, and anxietyrelated disorder.
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.
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
20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds; pushing or pulling similar amounts;
standing, walking, and sitting for 6 hours each; no more than frequent
postural activity; no foot pedal operation; no more than occasional
exposure to environmental extremes, such as dust, gas, fumes, heat,
cold, humidity; no more than occasional interaction with supervisors,
coworkers, and the public; no more than simple, routine, repetitive
tasks performed with a pace and stress tolerance that allows for no
She is unable to perform any of her past relevant work.
She could perform a significant number of jobs that exist in the
(Doc. #5, PageID #s 153-69). These main findings led the ALJ to ultimately conclude
that Plaintiff was not under a benefits-qualifying disability. Id. at 169.
The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplemental Security Income Regulations.
Plaintiff contends that the failed to give appropriate weight to the treating sources’
opinions and that the ALJ erred in finding that she was not credible. The Commissioner
maintains that the ALJ reasonably assessed the opinions of the Plaintiff’s mental health
providers and substantial evidence supports the ALJ’s finding that Plaintiff was not fully
The ALJ gave the opinion of Plaintiff’s treating mental health practitioners, Dr.
Griffith, Ms. Hawkins, and Ms. Detwiler, “minimal weight.” (Doc. #5, PageID #165).
The ALJ addressed the opinion of all three together, without distinguishing Dr. Griffith
as a treating physician and without discussing the treating physician rule. Under the rule,
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.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
The ALJ did not address the treating physician’s rule, and as a result, the Court
cannot engage in a meaningful review of the ALJ’s decision not to give Dr. Griffith’s
opinion controlling weight.
However, even if Dr. Griffith’s opinion is not entitled to controlling weight, the
ALJ’s review is not complete. “Adjudicators must remember that a finding that a treating
source medical opinion is not well-supported … or is inconsistent with the other
substantial evidence … means only that the opinion is not entitled to ‘controlling weight,’
not that the opinion should be rejected. Treating source medical opinions are still entitled
to deference and must be weighed using all of the factors provided in [the Regulations].”
Soc. Sec. R. 96-2p, 1996 WL 374188, at *4 (Soc. Sec. Admin. July 2, 1996). These
factors include “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). The goal is to make clear to any subsequent reviewer the
weight given and the reasons for that weight. Id. Substantial evidence must support the
reasons provided by the ALJ. Id.
ALJ Dillon addressed some of these factors. First, he considered internal
inconsistency. The ALJ noted that the three healthcare providers assigned Plaintiff a
Global Assessment of Functioning (GAF) score of fifty-six, indicating moderate
symptoms and limitations. (Doc. #5, PageID #s 166-67). He concluded that this score
was supported by the record. Id. However, the ALJ found that the score was inconsistent
with their marked and extreme limitations, and concluded, “the patent internal
inconsistency presented here weighs strongly against the persuasiveness of the treating
source opinions described above.” Id. at 166 (citation omitted).
The ALJ erred in relying on Plaintiff’s GAF scores to find that Dr. Griffith’s
opinion was internally inconsistent. Notably, “the Commissioner ‘has declined to
endorse the [GAF] score for ‘use in the Social Security and [Supplemental Security
Income] disability programs,’ and has indicated that [GAF] scores have no ‘direct
correlation to the severity requirements of the mental disorders listings.’” DeBoard v.
Comm’r of Soc. Sec., 211 F. App’x 411, 415 (6th Cir. 2006) (quoting Wind v. Barnhart,
No. 04–16371, 2005 WL 1317040, at *6 n.5, 133 F. App’x 684 (11th Cir. June 2, 2005);
65 Fed. Reg. 50746, 50764–65 (Aug. 21, 2000)). Further, the most recent edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) no longer uses the GAF
scale, in part due to “its lack of conceptual clarity (i.e., including symptoms, suicide risk,
and disabilities in its descriptors) and questionable psychometrics in routine practice.”
Liza H. Gold, DSM-5 and the Assessment of Functioning: The World Health
Organization Disability Assessment Schedule 2.0, 42 J. AM. ACAD. PSYCHIATRY & LAW
173, 174 (2014) (footnote omitted) (available at http://www.jaapl.org. Search by article
title). The recent rejection of the GAF scale by the psychiatric professionals who created
it and its lack of direct correlation with the requirements of the Commissioner’s mental
disorders listings exemplify the unreliability of such scores.
Moreover, ALJ Dillon recognizes: “The GAF is only a snapshot opinion about the
level of functioning …. Unless the clinician clearly explains the reasons behind his or
her GAF rating, and the period to which the rating applies, it does not provide a reliable
longitudinal picture of the claimant’s mental functioning ….” (Doc. #5, PageID #166).
Despite recognizing this unreliability, the ALJ still used the scores to reject Dr. Griffith’s
opinion. The ALJ reliance on Plaintiff’s GAF score after identifying the unpredictability
of such scores is inconsistent and unreasonable, if not also baffling, and illogical. As
such, it does not serve as a reasonable basis for rejecting Dr. Griffith’s opinion.
The ALJ then addressed whether Dr. Griffith’s opinion was consistent with
Plaintiff’s treatment. He found, “Were I to assign significant weight to the above
opinions, [Plaintiff] would undoubtedly be considered disabled, as she would likely
require extensive mental health care in a highly supportive living arrangement, especially
considering the multiple areas of extreme limitation noted in the latter Questionnaire.”
Id. The ALJ concluded that Plaintiff’s treatment records did not contain any indication
that Plaintiff required such treatment, and “she remains quite capable of caring for her
young daughter without any particular assistance.” Id.
Importantly, the ALJ is not a physician or psychiatrist, and it is not his
responsibility to determine what treatment would “likely” be appropriate for an
individual with certain limitations—even when those limitations are extreme. See Rohan
v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to
play doctor and make their own independent medical findings.”) (citations omitted).
ALJs may, however, consider the conservative nature of an individual’s treatment. See
Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 631 (6th Cir. 2016) (“The ALJ noted
that the records indicate Kepke received only conservative treatment for her ailments, a
fact which constitutes a ‘good reason’ for discounting a treating source opinion.”)
(citations omitted). But, Plaintiff’s treatment has not been conservative. Indeed,
medication in combination with counseling is a common and often effective treatment
regimen for bipolar disorder. See generally Bipolar Disorder, NAT’L INST. OF MENTAL
HEALTH, https://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml (last
updated April 2016) (“Treatment helps many people—even those with the most severe
forms of bipolar disorder—gain better control of their mood swings and other bipolar
symptoms. An effective treatment plan usually includes a combination of medication and
psychotherapy (also called ‘talk therapy’).”).
The ALJ’s reliance on Plaintiff’s ability to care for her child is misleading. It does
not show her ability to do mental work activities; it illustrates the severe symptoms of her
post-traumatic stress disorder and thus supports Dr. Griffith’s opinion. Plaintiff’s PTSD
is related to her being sexually abused by her father. (Doc. #5, PageID #s 84, 537).
When Plaintiff got pregnant, she was “afraid of having a girl because she thinks she
would suspect everyone of trying to molest her daughter the way she was molested by her
father.” Id. at 480. By January 2014, her past trauma was affecting her almost daily. Id.
at 606. Ms. Detwiler noted, It “[b]egan [with a] dream of her dad raping her when she
was 6.” Id.
Plaintiff testified that as a result of her childhood abuse, she does not allow men to
be around her daughter without her there. Id. at 83. Just the thought of leaving her child
with the child’s father or her step-father causes Plaintiff distress. Id. The ALJ asked
Plaintiff at the hearing: “It sounds like you’re very attentive, overly attentive because of
your PTSD. So are you with your child all the time?” Id. at 91. Plaintiff explained that
only she and her mother care for her daughter. Id. Her stepfather is only able to help if
Plaintiff is in the same room or close by. Id. Even when Plaintiff’s mother is watching
her daughter, Plaintiff is “eager to get home to her … to make sure that she is physically
okay with [her] own eyes.” Id.
The ALJ acknowledges that Plaintiff’s “overly attentive” care of her child is the
result of her PTSD. He then manipulates it to unreasonably find that she is not under a
disability. Plaintiff’s attentive—bordering on obsessive—care of her daughter does not
establish that she is able to perform work activities on a sustained basis. See Gayheart,
710 F.3d at 377 (“[T]he ALJ does not contend, and the record does not suggest, that [the
plaintiff] could do any of these activities on a sustained basis, which is how the
functional limitations of mental impairments are to be assessed.”) (citing 20 C.F.R. §
404.1520a(c)(2); 20 C.F.R. Part 404, Subpt. P, App. 1, at 12.00). Thus, this does not
constitute a good reason.
Next, the ALJ addresses the supportability of Dr. Griffith’s opinion. He found,
“the treating sources apparently relied quite heavily on the subjective report of symptoms
and limitations provided by [Plaintiff], and seemed to uncritically accept as true most, if
not all, of what [Plaintiff] reported.” (Doc. #5, PageID #166). In reaching this
conclusion, the ALJ fails to recognize that it can be considerably more difficult to
substantiate psychiatric impairments by objective laboratory testing:
[W]hen mental illness is the basis of a disability claim,
clinical and laboratory data may consist of the diagnosis and
observations of professionals trained in the field of
psychopathology. The report of a psychiatrist should not be
rejected simply because of the relative imprecision of the
psychiatric methodology or the absence of substantial
documentation, unless there are other reasons to question the
Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (citing Poulin v. Bowen, 817
F.2d 865, 873-74 (D.C. Cir. 1987), quoting Lebus v. Harris, F.Supp. 56, 60 (N.D. Cal.
In this case, Plaintiff’s treating practitioners identified her diagnoses—bipolar
disorder, PTSD, and attention deficit hyperactivity disorder—and their observations—
“depressed mood, flat affect, tearful, nightmares and flashbacks of past trauma, irritable,
racing thoughts and easily distracted”—and there are no reasons to question their
diagnostic techniques. (Doc. 5, PageID #582). They noted that her treatment includes
counseling two times per month and medication, and her response to treatment is fair. Id.
They opined her prognosis is guarded to poor, she has a low stress tolerance, and she has
very poor adaptation skills. Id. The treatment notes support their opinion, as they
consistently document her crying, agitation, pressured speech, a depressed mood, angry
affect, and poor focus. Id. at 447, 449, 451, 601, 606, 613, 616, 620, 628, 630-33, 635,
637, 480, 482, 489, 491. Although the treating practitioners undoubtedly relied, at least
in part, on Plaintiff’s reported subjective symptoms, both their opinion and treatment
notes document their observations from extensive counseling.
The ALJ’s reasons for rejecting and placing “little weight” on Dr. Griffith’s
opinion are not supported by substantial evidence and thus do not amount to “good
reasons” for rejecting it.
The ALJ also gave “minimal weight” to Ms. Hawkins’ interrogatory responses.
He accurately observed that as a licensed independent social worker, Ms. Hawkins is not
an acceptable medical source.” Id. at 165-66 (citation omitted); see 20 C.F.R. §
404.1513(a). Instead, Ms. Hawkins falls under the category of “other sources.” 20
C.F.R. § 404.1513(d). Evidence from “other sources” can only be used to show the
severity of impairments and how it affects the claimant’s ability to work. Id. While an
ALJ is required to weigh and provide “good reasons” for discounting the weight given to
a treating source opinion, an ALJ is not required to explain the weight given to “other
sources.” Gayheart, 710 F.3d at 376; Soc. Sec. R. 06-03p, 2006 WL 2329939, at *6
(Soc. Sec. Admin. Aug. 9, 2006).
Although “[i]nformation from these ‘other sources’ cannot establish the existence
of a medically determinable impairment,” the information “may be based on special
knowledge of the individual and may provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to function.” Soc. Sec. R. 0603p, 2006 WL 2329939, at *2. The same factors used to evaluate acceptable medical
sources can be used to evaluate opinions from other sources. Id. at *4-5. Although not
required by the Regulations, “the adjudicator generally should explain the weight given
to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to
follow the adjudicator’s reasoning….” Id. at *6 (emphasis added).
The ALJ is not required to explain the weight assigned to Ms. Hawkins’s opinion.
However, because Ms. Hawkins’s treatment of Plaintiff is intertwined with Dr. Griffith’s
treatment and resulting opinion, it is particularly relevant to this case. Additionally, the
Social Security Administration recognized, “With the growth of managed health care in
recent years and the emphasis on containing medical costs, medical sources who are not
‘acceptable medical sources’… have increasingly assumed a greater percentage of the
treatment and evaluation functions previously handled by physicians and psychologists.”
Soc. Sec. R. 06-03p, 2006 WL 2329939, at *3. This is particularly relevant in Plaintiff’s
case due to the extensive relationship between Plaintiff and Ms. Hawkins. (Doc. #5,
PageID #s 434-79, 586-637). Further, even if the ALJ does not weigh Ms. Hawkins’s
opinion, the ALJ should, at the very least, consider the information she provides and the
effect that her treatment of Plaintiff has on the weight of Dr. Griffith’s opinion.
In comparison to the “minimal weight” he assigned Plaintiff’s treating sources’
opinions, the ALJ gave “significant weight” to the opinions of the State agency
psychological consultants, Dr. Lewin and Dr. Johnston. (Doc. #5, PageID #165). The
ALJ acknowledges that non-examining State agency consultants do not generally deserve
as much weight as treating doctors. Id. But, they are entitled to some weight,
“particularly in a case like this in which there exist a number of other reasons to reach
similar conclusions (as explained throughout this decision). Indeed, when compared to
[Plaintiff’s] treating physicians’ opinions, I have considered the State agency
psychological consultants’ opinions more reliable, for the multiple reasons discussed in
detail below.” Id.
The ALJ, however, does not discuss multiple reasons for finding the State agency
psychological consultants’ opinions reliable. Instead, he only notes that their opinions
that Plaintiff could only perform three to four step tasks with no strict time or production
demands and could only have occasional, superficial interactions with others are
supported by the evidence and “are well in line with the preponderance of the mental
health treatment records since the amended alleged onset date, which are largely
unremarkable and do not indicate a sustained progress of sub-baseline psychological
functioning through the date of this decision.” Id. (citing Exhibits 4F, 6F, 16F).
Dr. Lewin and Dr. Johnston’s opinions cannot be “in line with” records that are
“largely unremarkable” as Plaintiff’s records are far from unremarkable. For example,
Plaintiff’s records illustrate her severe symptoms associated with bipolar disorder. See
Bipolar Disorder, NAT’L INST. OF MENTAL HEALTH,
https://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml (last updated April
2016) (“Bipolar I Disorder— defined by manic episodes that last at least 7 days, or by
manic symptoms that are so severe that the person needs immediate hospital care.
Usually, depressive episodes occur as well, typically lasting at least 2 weeks. Episodes of
depression with mixed features (having depression and manic symptoms at the same
time) are also possible.).
Plaintiff first returned to treatment with Ms. Hawkins because her mood was
unstable, and she was experiencing depressive and manic episodes. (Doc. #5, PageID
#434). Those episodes are documented consistently throughout the record. Ms. Hawkins
noted, for instance, on February 19, 2013 that her mood/affect was “manic, expansive”
and her speech was pressured. Id. at 482. By March 6, her mood was stable. Id. at 481.
On March 22, Ms. Detwiler noted that Plaintiff’s speech was mildly rapid/pressured, her
mood was irritable, her affect was full, and her motivation was low. Id. at 489.
Treatment notes further demonstrate her persistent struggle with post-traumatic
stress disorder. For example, she was “charged with felonious assault after a friend
threatened to harm a child.” Id. at 438. She also experiences nightmares and flashbacks
to childhood sexual abuse on a regular basis. Id. at 594, 598, 601, 606.
Plaintiff’s constant fight with these mental illnesses is well documented
throughout her remarkable treatment record. Thus, the ALJ’s assertion that Plaintiff’s
treatment records are “largely unremarkable” is not supported by substantial evidence.
The ALJ also erred by failing to apply the same level of scrutiny to the Dr. Lewin
and Dr. Johnston’s opinions as he applied to Dr. Griffith’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
(Soc. Sec. Admin. July 2, 1996)) (“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.”). For example, the ALJ failed to acknowledge that
Dr. Lewin completed her assessment in March 2013 and Dr. Johnston completed hers in
June 2013, both long before Plaintiff’s treating practitioners completed theirs in May
Accordingly, Plaintiff’s statement of errors is well taken.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 her credibility is unwarranted.
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
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 applications for
Disability Insurance Benefits and Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
The Commissioner’s non-disability finding be vacated;
No finding be made as to whether Plaintiff April S. Ferryman was under a
“disability” within the meaning of the Social Security Act;
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
The case be terminated on the Court’s docket.
Date: May 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. 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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