Kiser v. Commissioner of Social Security

Filing 16

DECISION AND ENTRY: (1) REVERSING THE ALJS NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) TERMINATING THIS CASE ON THE COURTS DOCKET re 13 14 15 . Signed by Magistrate Judge Michael J. Newman on 9/27/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SAMANTHA KISER,
Plaintiff,

Case No. 3:16-cv-317

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 FOURTH 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. 12. At issue is whether the Administrative Law Judge
(“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance
Benefits (“DIB”) and/or Supplemental Security Income (“SSI”).1 This case is before the Court
on Plaintiff’s Statement of Errors (doc. 13), the Commissioner’s memorandum in opposition
(doc. 14), Plaintiff’s reply (doc. 15), the administrative record (doc. 10),2 and the record as a
whole.

“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Decision and Entry to DIB regulations are
made with full knowledge of the corresponding SSI regulations, and vice versa.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.
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I.
A.

Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of April 20, 2006. PageID
392-401, 422. Plaintiff suffers from a number of impairments including, inter alia, an affective
disorder and anxiety. PageID 74.
After an initial denial of her applications, Plaintiff received a hearing before ALJ Shirley
Michaelson on March 20, 2012. PageID 162-208. ALJ Michaelson issued a written decision on
June 4, 2012 finding Plaintiff not disabled. PageID 134-54. Thereafter, the Appeals Council
denied Plaintiff’s request for review. On appeal to this Court, Judge Rose granted the parties’
joint motion for a Sentence Four remand. See Kiser v. Comm’r, No. 3:13-cv-178 (S.D. Ohio
Aug. 30, 2013). As a result, the case was remanded to the ALJ for further proceedings. Id.
On remand, Plaintiff received a hearing before ALJ David Redmond on July 21, 2014.
PageID 97-113. ALJ Redmond issued a written decision on November 14, 2014 finding Plaintiff
not disabled. PageID 68-87. Specifically, ALJ Redmond found at Step Five that, based upon
Plaintiff’s residual functional capacity (“RFC”) to perform light work,3 “there are jobs that exist
in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 71-87.
The Appeals Council affirmed ALJ Redmond’s decision, and Plaintiff timely appealed to
this Court. The decision and analysis by ALJ Redmond (hereinafter “ALJ”) are now before the
Court for review.

The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work
“involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up
to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light
work is presumed to also be able to perform sedentary work. Id. Sedentary work “involves lifting no
more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
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B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 71-87),
Plaintiff’s Statement of Errors (doc. 13), the Commissioner’s memorandum in opposition (doc.
14), and Plaintiff’s reply (doc. 15). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this decision 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 742,74546 (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.

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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. § 404.1520. Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
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. § 404.1520(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’s definition. 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 erred by improperly: (1) rejecting
the opinions of her treaters including, inter alia, treating psychiatrist Darshan Singh, M.D.; (2)
weighing reports by non-treating medical sources; and (3) assessing her credibility. Finding
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error in the ALJ’s rejection of treating source opinions (Plaintiff’s first alleged error), the Court
does not address the merits of Plaintiff’s remaining two alleged errors and, instead, directs that
they be addressed on remand.
Until March 27, 2017, “the Commissioner’s regulations [which 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
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 404.1527(c)(2).
A treater’s opinion 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 opinion 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 opinion, consistency of the opinion
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. § 404.1527(c).4

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12-cv-3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of”
20 C.F.R. § 404.1527. Id.
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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.
Put simply, “[t]he 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)). In the absence of a
controlling treating source opinion, an ALJ must “evaluate all medical opinions” with regard to
the factors set forth in 20 C.F.R. § 404.1527(c), i.e., length of treatment history; consistency of
the opinion with other evidence; supportability; and specialty or expertise in the medical field
related to the individual’s impairment(s). Walton v. Comm’r of Soc. Sec., No. 97-2030, 1999
WL 506979, at *2 (6th Cir. June 7, 1999).
Dr. Singh opined in March 2011 that Plaintiff has “extreme” limitations in her ability to
maintain social functioning, and is “markedly limited”6 in her ability to perform activities of
daily living and maintain concentration, persistence or pace in a work environment. PageID 7980. The ALJ assigned Dr. Singh’s opinion “no weight whatsoever,” finding that it was “neither
well supported by medically acceptable clinical and laboratory diagnostic techniques nor
consistent with other substantial evidence in the case record.” PageID 79. Instead, the ALJ
concluded that Dr. Singh’s opinion “could only be based on uncritical acceptance of the
claimant’s subjective complaints.” Id.
The ALJ’s statement in this regard fails to satisfy the requirements of the treating
physician rule set forth in 20 C.F.R. § 404.1527(c). See Gayheart v. Comm’r of Soc. Sec., 710

Whereas “mild” and “moderate” functional limitations are generally considered “nondisabling,” 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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F.3d 365, 377 (6th Cir. 2013). The ALJ’s conclusory statement -- that Dr. Singh’s opinion is not
“well supported by medically acceptable clinical and laboratory diagnostic techniques nor
consistent with other substantial evidence in the case record[,]” PageID 79 -- is ambiguous
because “[o]ne 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.
Further, insofar as the ALJ may have concluded that the record was devoid of any clinical
findings,7 such conclusion is unsupported by substantial evidence. In fact, Plaintiff’s treatment
records reflect that, upon examination, she consistently appeared tired, depressed, anxious,
irritable, overwhelmed, worried and withdrawn. PageID 587, 589, 596, 602, 603-05, 607-09,
677-81, 683, 1068-69, 1071, 1075, 1077, 1081-82, 1126-30, 1177-79.

Insofar as the ALJ

concluded that such clinical findings do not support Dr. Singh’s opinion, the ALJ sets forth no
specific or meaningful explanation in that regard. In light of these objective clinical findings, the
ALJ’s conclusion -- that Dr. Singh’s opinion must be based on “uncritical acceptance of
[Plaintiff’s] subjective complaints” -- is unsupported by substantial evidence. See supra.
With regard to the purportedly inconsistent “other substantial evidence in the case
record” undermining Dr. Singh’s opinion, it is not entirely clear what evidence the ALJ
references. See PageID 79. Insofar as the ALJ relied on the opinions of “[o]ther mental health
professionals” who purportedly presented less drastic assessments of the claimant’s mental
functioning capabilities, see PageID 573, 577-79, 661, 665-67, such reliance -- in declining
controlling weight to Dr. Singh’s opinion -- is error. See Gayheart, 710 F.3d at 377 (holding that
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)).
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“the conflicting substantial evidence must consist of more than the medical opinions of the
nontreating and nonexamining doctors” because “[o]therwise the treating-physician rule would
have no practical force because the treating source’s opinion would have controlling weight only
when the other sources agreed with that opinion”).
Insofar as the other purported substantial evidence of record are Global Assessment of
Functioning (“GAF”)8 scores of 51 and 58, the Court notes that a GAF score is merely a
“snapshot of a person’s ‘overall psychological functioning’ at or near the time of evaluation[,]”
and its relevance “is isolated to a relatively brief period of time[.]” Laning v. Comm’r of Soc.
Sec., No. 3:15-CV-75, 2016 WL 1729650, at *6 (S.D. Ohio Mar. 28, 2016) (citing White v.
Colvin, No. 3:13CV00171, 2014 WL 2813310, at *10 (S.D. Ohio June 23, 2014)). As a result,
GAF scores have “little value in assessing disability[,]” id., and it is generally improper for an
ALJ to rely on a GAF score to discredit a medical source’s specific opinion about an individual’s
work-related abilities and limitations. Mosley v. Comm’r of Soc. Sec., No. 3:14-CV-278, 2015
WL 6857852, at *5 (S.D. Ohio Sept. 14, 2015) (citations omitted).
Finally, insofar as the ALJ relied on Plaintiff’s purported ability to take care of her three
children and occasionally perform household chores, the undersigned finds that her engagement
in such activities is insufficient to undermine Dr. Singh’s opinion concerning Plaintiff’s inability
to perform work on a sustained basis as a result of her severe mental impairments. Specifically,
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.
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at the 2014 administrative hearing, Plaintiff testified that she performs no cooking (her boyfriend
does so), no grocery shopping (her boyfriend again does so), and no driving (her boyfriend
likewise performs all the driving). PageID 104-05. Plaintiff testified that she goes to bed at
11:00 p.m., awakes the following afternoon at 3:00 p.m., and “basically watch[es] TV and just
[lies] there.” Id. While a single treatment note reflects caring for her children and doing chores,
her testimony during the 2012 administrative hearing details the extent of such activities -namely, that she lays out their clothes, makes cereal or frozen waffles for breakfast, and drives
them a short distance to school, but spends the majority of her time in bed. PageID 180-81.
Based upon the foregoing, the ALJ’s analysis regarding the weight accorded Dr. Singh’s
opinion is unsupported by substantial evidence. Reversal is mandated.
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 an 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).
The Court finds that a remand for further proceedings is necessary. On remand, all
medical source opinions -- including, among others, Drs. Singh, Gomaa, and Rorrer -- as well as
any new medical source opinions, must be weighed anew in accordance with the regulations,
with care to ensure that all opinions be scrutinized equally. See Gayheart, 710 F.3d at 379.
V.
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For the foregoing reasons, (1) the Commissioner’s 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.

Date:

September 27, 2017

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

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