Nyamweya v. Commissioner for Social Security

Filing 11

DECISION AND ENTRY: (1) REVERSING THE ALJS NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE TO THE COMMISSIONER UNDER THE FOURCH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION ; AND (3) TERMINATING THIS CASE ON THE COURTS DOCKET - IT IS ORDERED THAT: (1) the Commissioners non-disability finding is unsupported by substantial evidence, and REVERSED; (2) this matter is REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this opinion; and (3) this case is TERMINATED on the docket. IT IS SO ORDERED. Signed by Magistrate Judge Michael J. Newman on 9/29/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NICOLETTE T. NYAMWEYA,
Plaintiff,

Case No. 3:16-cv-243

vs.
COMMISSIONER OF SOCIAL SECURITY,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.
______________________________________________________________________________
DECISION AND ENTRY: (1) REVERSING THE ALJ’S NON-DISABILITY FINDING
AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE
TO THE COMMISSIONER UNDER THE FOURCH SENTENCE OF 42 U.S.C. § 405(g)
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) TERMINATING
THIS CASE ON THE COURT’S DOCKET
______________________________________________________________________________
This Social Security disability benefits appeal is before the undersigned for disposition
based upon the parties’ consent. Doc. 6. At issue is whether the Administrative Law Judge
(“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Supplemental
Security Income (“SSI”).

This case is before the Court on Plaintiff’s Statement of Errors (doc.

8), the Commissioner’s memorandum in opposition (doc. 9), Plaintiff’s reply (doc. 10), the
administrative record (doc. 6),1 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed an application for SSI on October 19, 2012, alleging disability as a result of
a number of impairments including, inter alia, social anxiety, depression, and mild lumbosacral
degenerative disc disease. PageID 66-68, 195-211.

1

Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.

After an initial denial of her application, Plaintiff received a hearing before ALJ Gregory
G. Kenyon on January 13, 2015. PageID 82-103. The ALJ issued a written decision on March
19, 2015 finding Plaintiff not disabled. PageID 66-77. Specifically, the ALJ found at Step Five
that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of
medium work,2 “there are jobs that exist in significant numbers in the national economy that the
[Plaintiff] can perform[.]” PageID 70-77.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 45-48. See
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then
filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 66-77),
Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition (doc. 9),
and Plaintiff’s reply (doc. 10). The undersigned incorporates all of the foregoing and sets forth
the facts relevant to this appeal herein.
II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-

“Medium work” involves the occasional lifting of 50 pounds at a time, and frequent lifting or
carrying of objects weighing up to 25 pounds. 20 C.F.R. § 416.967. Medium work can require standing
and walking as much as six hours during any given eight-hour workday. Id. It may also involve frequent
stooping, grasping, holding, and turning objects. Id. “The functional capacity to perform medium work
includes the functional capacity to perform sedentary, light, and medium work.” 20 C.F.R. § Pt. 404, Sub
Pt. P, App. 2, § 203.00(a).
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46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, the complete sequential review poses five questions:

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1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet
or equal the criteria of an impairment set forth in the Commissioner’s
Listing of Impairments (the “Listings”), 20 C.F.R. Subpart P,
Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in
the national economy which the claimant can perform?

20 C.F.R. § 416.920(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D.
Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social
Security Act. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In her Statement of Errors, Plaintiff argues that the ALJ failed to: (1) appropriately weigh
the opinions of treating clinical psychologist, Nicole Blust, Psy.D.; (2) appropriately weigh other
medical evidence; and (3) find her credible. Finding Plaintiff’s first alleged error to be well
taken, the undersigned does not address the merits of Plaintiff’s two other suggested errors.
Until March 27, 2017, “the Commissioner’s regulations [that apply to this appeal]
establish[ed] a hierarchy of acceptable medical source opinions[.]” Snell v. Comm’r of Soc. Sec.,
No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these
medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the
regulations in effect prior to March 27, 2017, the opinions of treaters are entitled to the greatest
deference because they “are likely to be . . . most able to provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical

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evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 416.927(c)(2).
A treater’s opinions must be given “controlling weight” if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377,
384 (6th Cir. 2013). Even if a treater’s opinions is not entitled to controlling weight, “the ALJ
must still determine how much weight is appropriate by considering a number of factors,
including the length of the treatment relationship and the frequency of examination, the nature
and extent of the treatment relationship, supportability of the opinions, consistency of the
opinions with the record as a whole, and any specialization of the treating physician.” Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 416.927(c).
After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who
often see and examine claimants only once.” Snell, 2013 WL 372032, at *9.
Record reviewers are afforded the least deference and these “non-examining physicians’
opinions are on the lowest rung of the hierarchy of medical source opinions.”

Id. “The

regulations provide progressively more rigorous tests for weighing opinions as the ties between
the source of the opinion and the individual [claimant] become weaker.” Id. (citing SSR 96-6p,
1996 WL 374180, at *2 (July 2, 1996)).
Dr. Blust treated Plaintiff from June 2010 through January 2012.

PageID 277-86.

During her treatment of Plaintiff, Dr. Blust noted that Plaintiff presented with a cautious and
passive attitude; behaved rigidly; had fair memory; and displayed a flat, anxious and depressed

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mood/affect. PageID 281. In June 2010, Dr. Blust assigned Plaintiff a Global Assessment of
Functioning (“GAF”) score of 50, indicative of serious symptoms at that time.3 PageID 283.
In February 2013, Dr. Blust opined that Plaintiff suffers from extreme social anxiety that
prevents her from going to public places and interacting with people. PageID 275. Dr. Blust
further found that Plaintiff possesses little tolerance for stress, gets overwhelmed easily, and
withdraws/isolates when stressed. PageID 276. Subsequently, in June 2014 (approximately twoand-a-half years after her treatment relationship with Plaintiff ended), Dr. Blust offered the
opinion that, during her treatment of Plaintiff between 2010 and 2012, Plaintiff had “marked”
functional limitations4 with regard to her activities of daily living, her ability to maintain social
functioning, and her ability to maintain concentration, persistence and pace. PageID 490. The
ALJ concluded that Dr. Blust’s opinions were “not entitled to controlling or deferential weight”
and, instead, were entitled to “little weight.” PageID 75. In so concluding, the ALJ found that
Dr. Blust’s opinions were “not fully supported by the record” and she “appears to have simply
accepted the claimant’s subjective complaints with no inquiry into whether they were objectively
supported.” Id.

GAF is a tool used by health care professionals to assess a person’s psychological, social, and
occupational functioning on a hypothetical continuum of mental illness. Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. 2000) (“DSM-IV”). “The most recent (5th) edition of the
Diagnostic and Statistical Manual of Mental Disorders does not include the GAF scale.” Judy v. Colvin,
No. 3:13-cv-257, 2014 WL 1599562, at *11 (S.D. Ohio Apr. 21, 2014); see also Diagnostic and
Statistical Manual of Mental Disorders 16 (5th ed. 2013) (“DSM-V”) (noting recommendations “that the
GAF be dropped from [DSM-V] for several reasons, including its conceptual lack of clarity ... and
questionable psychometrics in routine practice”). As set forth in the DSM-IV, a GAF score of 41-50
indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or
any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job).” Id. A GAF score of 51-60 is indicative of “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks)” or “moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” Id.
4
Whereas “mild” and “moderate” functional limitations are generally considered non-disabling,
see Sims v. Comm’r of Soc. Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” limitations are
suggestive of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan, 942
F.2d 301, 307 (6th Cir. 1991).
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The undersigned finds that the reasons provided by the ALJ in rejecting Dr. Blust’s
opinion are not supported by substantial evidence. First, Dr. Blust’s records note objective
clinical signs5 supportive of her opinion, undermining the ALJ’s assumption that her opinions
were supported only by an uncritical acceptance of Plaintiff’s subjective complaints. As set forth
above, on mental status examination, Dr. Blust found that Plaintiff presented with a cautious and
passive attitude; behaved rigidly; had fair memory; and displayed a flat, anxious and depressed
mood/affect. PageID 281. Based upon such findings, the ALJ conclusion -- that Dr. Blust’s
opinion “appears” to be based solely on Plaintiff’s subjective complaints -- is contrary to the
record and, thus, unsupported by substantial evidence.
The Court also finds a lack of substantial evidence supporting the ALJ’s finding that Dr.
Blust’s opinion is otherwise “not fully supported by the record.” PageID 75. In addition to the
clinical findings noted in in Dr. Blust’s treatment records, records from other treatment providers
detail findings similar to those noted by Dr. Blust -- findings that appear to support her opinion.
Specifically, a behavioral mental status assessment in January 2013 found that Plaintiff appeared
withdrawn; displayed obsessive and persecutory thought content; looked depressed and anxious
with a flat mood; and displayed impairment in memory, attention and concentration. PageID
324. On that visit, Plaintiff was assigned a GAF score of 41, which is indicative of serious
symptoms.

PageID 323; see also supra n.3. Similar observations were recorded again in

February, March, April and May of 2013 as well. PageID 318-21.
Finally, the Court finds error with regard to the ALJ’s statement that Plaintiff’s “aversion
to being around other people . . . seems to be more a matter of preference than a true acute
psychological condition.” PageID 75. The ALJ cites no support for such a conclusion and, in
With regard to clinical findings of a mental impairment, the Sixth Circuit has “acknowledged
the difficulty inherent in proving psychological disabilities.” Keeton v. Comm’r of Soc. Sec., 583 F.
App’x 515, 526 (6th Cir. 2014). “’[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.’” Id. (quoting Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989)).
5

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fact, not only did Dr. Blust specifically diagnose Plaintiff with social phobia, but examining
psychologist Jerry Flexman, Ph.D. -- whose opinion the ALJ gave “great weight” -- diagnosed
Plaintiff with social phobia and found that, based upon her “[c]urrent psychiatric issues[,]” she
“may have problems in relation to others in the workplace.” PageID 315. Therefore, it appears
that the ALJ’s medical conclusion in this regard resulted from a lay interpretation of evidence of
record, a task the ALJ is not entitled to perform. See Martin v. Comm’r of Soc. Sec., 207 F.
Supp. 3d 782, 791 (S.D. Ohio 2016).
Accordingly, based on all of the foregoing, the undersigned finds the ALJ’s weighing of
Dr. Blust’s opinion unsupported by substantial evidence and meriting reversal.
IV.
When, as here, the ALJ’s non-disability determination is unsupported by substantial
evidence, the Court must determine whether to reverse and remand the matter for rehearing or to
reverse and order the award of benefits. The Court has authority to affirm, modify or reverse the
Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C.
§ 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded
immediately “only if all essential factual issues have been resolved and the record adequately
establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17
F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990);
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). In this instance,
evidence of disability is not overwhelming and a remand for further proceedings is required.
V.
For the foregoing reasons, IT IS ORDERED THAT: (1) the Commissioner’s nondisability finding is unsupported by substantial evidence, and REVERSED; (2) this matter is

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REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for
proceedings consistent with this opinion; and (3) this case is TERMINATED on the docket.
IT IS SO ORDERED.

Date:

September 29, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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