Abney v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Brittany Abney was under a "disability" within the meaning of the Social Security Act; this matter be REMANDE D 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. Objections to R&R due by 2/22/2018. Signed by Magistrate Judge Sharon L. Ovington on 2/8/2018. (lk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
: Case No. 3:16-cv-417
: District Judge Walter H. Rice
Magistrate Judge Sharon L. Ovington
REPORT AND RECOMMENDATIONS1
As a child, Plaintiff Brittany Abney received Supplemental Security Income.
When she turned eighteen years old, the Social Security Administration redetermined her
eligibility as required by 20 C.F.R. § 416.987 and found that she was no longer under a
disability. Following a hearing, Administrative Law Judge (ALJ) Elizabeth A. Motta
concluded that Plaintiff’s disability ended on March 1, 2013 and she had not become
disabled again since that date. Plaintiff brings this case challenging the Social Security
Administration’s denial of her claim for benefits.
Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
The case is presently before the Court upon Plaintiff’s Statement of Errors (Doc.
#7), the Commissioner’s Memorandum in Opposition (Doc. #10), Plaintiff’s Reply (Doc.
#11), and the administrative record (Doc. #6).
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Motta’s nondisability decision.
Plaintiff asserts that she has been under a disability since at least March 1, 2013,
when she stopped receiving benefits as a child. She was eighteen years old at that time
and was therefore considered a “younger person” under Social Security Regulations. See
20 C.F.R. § 416.963(c). She has a limited education. See 20 C.F.R. § 416.964(b)(3).
Plaintiff testified at the hearing before ALJ Motta that she struggles with mood
swings. (Doc. #6, PageID #93). She explained, “I’ll be fine one minute … and then the
next minute, if someone might say something wrong, I pop off and like want to put my
hands on people.” Id. at 94. She has never physically harmed anyone; instead she
screams, cusses, and then leaves. Id. She used to throw things. Id. She does not handle
criticism well, and if she is criticized, she cries or “just punch[es] holes.” Id. at 96.
When asked if she wanted to work, Plaintiff responded: “Yes, but right now I’m afraid to
work because I’m afraid that I’ll lose my tempter. I’ll put my hands on people and lose
my job. And I can’t focus and comprehend.” Id.
At the time of the hearing, Plaintiff had “just recently” started mental health
treatment with Dr. Ramen and a counselor at his office, Deborah. Id. at 88-99. She
explained that she does not want to attend treatment because she does not want to go
anywhere. Id. at 88. However, she acknowledged that she “need[s] to be medicated.
And since [she’s] been on [her] medications, it has really helped a lot.” Id. at 88-89.
After completing tenth grade, because of Plaintiff’s difficulties in school, her high
school counselor recommended she enroll in online classes through Electronic Classroom
of Tomorrow (ECOT). Id. at 86-87. She tried the program but had difficulty focusing,
daydreamed a lot, and could not stay awake. Id. at 86-87, 95. Ultimately, Plaintiff
dropped out of high school her junior year. Id. at 86. She attempted GED preparation
classes but she could not understand the instructor and “just got up and walked out of the
room.” Id. at 87.
Plaintiff does not live in one place. Instead, she stays with her cousin for a few
days, then with her aunt, and then spends a few days with her grandfather. Id. at 85-86.
During the day, she usually stays inside “behind locked doors because [she] feel[s] safe
there.” Id. at 90. She is afraid to go anywhere because she is afraid that someone will
harm her. Id. She explained that a few months before the hearing, she was robbed by an
individual with a knife. Id. at 90-91. Plaintiff watches movies “all day and all night
long.” Id. at 92. She washes dishes but does not do laundry because she does not know
how. Id. at 91. People have tried to show her, but she “can’t comprehend.” Id. She goes
to the grocery store with her aunt or grandfather “once in a blue moon.” Id. She does not
keep track of her own money—her aunt and cousin help her. Id. at 93. She obtained a
temporary driving permit but let it expire and is afraid to drive. Id. at 86.
Mahmood Rahman, M.D.
On March 20, 2015, Dr. Rahman, Plaintiff’s treating psychiatrist, completed
interrogatories. Id. at 665-72. He reported that he treated Plaintiff for severe depression,
anxiety, mood swings, considerable agitation, chronic insomnia, impaired concentration,
decreased memory, forgetfulness, distractibility, low frustration tolerance,
procrastination, low productivity, and disorganization. Id. at 666. He opined that
Plaintiff would not be capable of being be prompt and regular in attendance “because she
has a tendency to procrastinate.” Id. She is “unable to tolerate stress of customary work
pressure [and] [t]ends to become very defensive when criticized.” Id. Plaintiff would be
unable to sustain attention and concentration to meet normal standards of work
productivity and accuracy “due to considerable distractibility” and “uncontrolled racing
thoughts ….” Id. at 667. She would not be capable of getting along with co-workers
without unduly distracting them or exhibiting behavior extremes “[d]ue to her
unpredictable [and] erratic mood swings …,” and she would require “considerable
supervision” to sustain an ordinary routine. Id. at 670. Dr. Rahman concluded that
Plaintiff had marked limitations in her daily living, moderate limitations in her social
functioning, and marked deficiencies of concentration, persistence or pace. Id. at 672.
Dr. Rahman also completed a Mental Impairment Questionnaire on March 22,
2015. Id. at 673-76. Dr. Rahman diagnosed Plaintiff with bipolar affective disorder and
ADD. He identified the following as Plaintiff’s signs and symptoms: poor memory,
sleep disturbance, mood disturbances, emotional lability, anhedonia or pervasive loss of
interests, psychomotor agitation or retardation, paranoia or inappropriate suspiciousness,
difficulty thinking or concentrating, decreased energy, and manic syndrome. Id. at 673.
Further, Plaintiff was alert, suspicious, guarded, emotionally labile, exhibited paucity of
thought, and psychomotor retardation alternating with agitation. Id. at 674. He noted she
was partially responding to medications with a guarded prognosis. Id. Dr. Rahman
opined that Plaintiff’s impairments or treatments would cause her to be absent from work
more than three times a month. Id. at 675.
Giovanni Bonds, Ph.D.
Dr. Bonds evaluated Plaintiff on February 14, 2013.2 Id. at 461-70. Plaintiff
reported that she was applying for disability due to feeling anxious, depressed, forgetful,
and hyperactivity. Id. at 462. She has mood swings, low energy, and difficulty sleeping.
Id. at 464. She is quick to anger and blows up if someone says something she does not
like. Id. She also reported several traumatic childhood experiences, including medical
issues, frequent shifting of custody, physical abuse, and sexual abuse. Both of her
parents died from drug overdoses. Id. at 462. At the time of this evaluation, she was not
receiving mental health treatment. Id. at 463.
Dr. Bonds noted that she had previously evaluated Plaintiff for disability on April 1, 2004 and she had
reviewed the report. She also referenced another prior psychological evaluation performed by Tyrone
Payne, Ph.D., on April 7, 2000. (Doc. #6, PageID #463). Neither report is in the record.
Dr. Bonds noted Plaintiff’s mood seemed mildly depressed with broad affect and
appropriate thought content. Id. at 464. She appeared nervous during the interview as
indicated by her constantly shaking her foot and biting her fingernails. Id. at 465. Dr.
Bonds diagnosed Plaintiff with mood disorder, not otherwise specified, and borderline
intellectual functioning. Id. at 467.
Jonathan A. Hentz, B.A., a psychology assistant, administered the Wechsler Adult
Intelligence Scale – Fourth Edition (WAIS-IV). Id. at 461. Dr. Bonds reported
Plaintiff’s Full Scale IQ score—72—falls in the borderline range. Id. at 466. Further,
Plaintiff’s Verbal Comprehension, Perceptual Reasoning, and Processing Speed fall in
the borderline range and her Working Memory falls in the low average range. Id.
Dr. Bonds opined that Plaintiff’s cognitive abilities are below average and in the
borderline range. Id. at 468. Although she was able to understand, remember and follow
instructions during the testing and interview, she needed help with reading, understanding
and completing the history form. Id. This “suggests she may have some problems with
reading and following written instructions.” Id. Her attention and concentration were
satisfactory. Id. However, “[s]he may have some difficulty with working at a
competitive speed and performing job tasks consistently.” Id. Her “ability to relate to
supervisors, coworkers or the public may be affected by her problems with controlling
her temper. She is easily aggravated by people.” As a result, she “may have some
difficulties with taking criticism and resolving interpersonal problems that occur at
work.” Id. Dr. Bonds concluded that Plaintiff “would have some difficulties with work
pressures for speed, productivity, dealing with frequent changes in the work and working
around many people.” Id. at 469.
Bonnie Katz, Ph.D., & Aracelis Rivera, Psy.D.
Dr. Katz reviewed Plaintiff’s records on March 12, 2013. Id. at 472-88. She
opined that Plaintiff was moderately limited in her ability to understand, remember, and
carry out detailed instructions; maintain attention and concentration for extended periods;
to perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; work in coordination with or proximity to others without
being distracted by them; complete a normal workday or workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; interact appropriately with the general
public; accept instructions and respond appropriately to criticism from supervisors;
respond appropriately to changes in the work setting; and set realistic goals or make plans
independently of others. Id. at 486-87. Dr. Katz concluded that Plaintiff “is able to
[understand and reliably] perform [simple, routine tasks] that are not fast paced, in a
setting where contact with others is only superficial. [She] can make simple decisions.
[She] is able to adapt to infrequent changes in routine that are easily explained, with new
tasks or procedures demonstrated and instructions repeated until [she] can master them,
in a setting where supervisory supports are available at times of transition.” Id. at 488.
On June 20, 2013, Dr. Rivera reviewed Plaintiff’s records and affirmed the most of
Dr. Katz’s assessment. Id. at 498-514. She found that Plaintiff was moderately limited in
her ability to get along with coworkers or peers without distracting them or exhibiting
behavioral extremes. Id. at 499.
Standard of Review
The Social Security Administration provides 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. § 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. § 1382c(a)(3)(A); see Bowen, 476 U.S. at
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
When the Social Security Administration redetermines a person’s eligibility, it
uses the rules for adults. 20 C.F.R. § 416.987(b). In the present case, it fell to ALJ Motta
to evaluate the evidence connected to Plaintiff’s eligibility for benefits. She did so by
considering each of the sequential steps set forth in the Social Security Regulations. See
20 C.F.R. §§ 416.987(b); 416.920(c)-(h). She reached the following main conclusions:
Plaintiff has the severe impairments of borderline intellectual
functioning and mood 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 at all
exertional levels, subject to the following limitations: simple,
repetitive tasks; low stress work, which in this case is defined
as no strict production quotas, no fast-paced work, and only
routine work with few changes in the work setting; jobs that
would allow for some demonstration in explaining new tasks;
no more than simple work-related decision making; no
contact with the public as part of job duties; no greater than
occasional contact with coworkers, including no teamwork;
and reading limited to 7th grade level..”
She does not have past relevant work.
She could perform a significant number of jobs that exist in
the national economy.
(Doc. #6, PageID #s 59-70). These main findings led the ALJ to ultimately conclude
that, as of March 1, 2013, Plaintiff was not under a benefits-qualifying disability. Id. at
Plaintiff contends that the ALJ failed to give appropriate weight to her treating
psychiatrist’s opinion. The Commissioner maintains that substantial evidence supports
the ALJ’s evaluation of Dr. Rahman’s opinion.
Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
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.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory
“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the
weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to
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 Motta first addressed Dr. Rahman’s interrogatories: “In response to
interrogatories …, Dr. Rahman, the treating psychiatrist, reported that [Plaintiff’s]
psychiatric symptoms were of Listing level severity, and, as such, she would be disabled
from all work activity[.] The ultimate conclusion as to whether an individual satisfies the
statutory definition of ‘disability’ is an issue that is reserved to the Commissioner ….”
(Doc. #6, PageID #66 (citations omitted)).
ALJ Motta’s summary of Dr. Rahman’s responses is misleading—at best. His
responses neither mention the Listings nor conclude that Plaintiff is “disabled” by any
definition of the word. Instead, Dr. Rahman provides his opinion on Plaintiff’s ability to
perform various work-related activities and her ability to function in several areas. Those
areas—restriction of activities of daily living; difficulties in maintaining social
functioning; and deficiencies of concentration, persistence, or pace—may mirror the
Listing criteria, but that is not the same as “a statement by a medical source that you are
‘disabled’ or ‘unable to work’ ….” 20 C.F.R. § 416.927(d)(1).
Further, even if Dr. Rahman expressed an opinion on the ultimate issue of
Plaintiff’s disability status, it is not a valid reason to discount or ignore it. “The pertinent
regulation says that ‘a statement by a medical source that you are ‘disabled’ or ‘unable to
work’ does not mean that we will determine that you are disabled.’ That’s not the same
thing as saying that such a statement is improper and therefore to be ignored....” Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (internal citation omitted); see Kalmbach v.
Comm’r of Soc. Sec., No. 09-2076, 409 F. App’x 852, 861 (6th Cir. 2011) (“the fact that
the ultimate determination of disability, per se, is reserved to the Commissioner, 20
C.F.R. § 404.1527(e) [§ 416.927(d)(1)], did not supply the ALJ with a legitimate basis to
disregard the physicians’ [opinions].”).
But ALJ Motta’s analysis of Dr. Rahman’s opinion did not stop there. She further
concluded that Dr. Rahman’s opinion that Plaintiff “is disabled/unemployable cannot be
given controlling, or even deferential, weight.” (Doc. #6, PageID# 66). She instead
assigned his assessment “little weight.” Id. at 67. Although ALJ Motta previously
explained the treating physician rule, she does not address it directly while evaluating Dr.
Rahman’s opinion. However, she does provide several reasons for her finding.
The ALJ acknowledged that Dr. Rahman is a psychiatrist. Id. at 66; see 20 C.F.R.
§ 416.917(c)(5) (“We generally give more weight to the medical opinion of a specialist
about medical issues related to his or her area of specialty than to the medical opinion of
a source who is not a specialist.”). Specifically, he is Plaintiff’s treating psychiatrist.
(Doc. #6, PageID #66); see 20 C.F.R. § 416.917(c)(2) (“Generally, we give more weight
to medical opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspective to the medical evidence ….”).
The ALJ observed that he had treated Plaintiff once a month since May 2014.3 (Doc. #6,
PageID #66); see 20 C.F.R. § 416.917(c)(2)(i) (“Generally, the longer a treating source
has treated you and the more times you have been seen by a treating source, the more
weight we will give to the source’s medical opinion.”). Indeed, at the time Dr. Rahman
provided his opinion, he had seen Plaintiff twelve times over the course of just less than
The ALJ previously incorrectly states that Dr. Rahman saw Plaintiff “once every two to three months
….” (Doc. #6, PageID #62.
one year—ostensibly “long enough to have obtained a longitudinal picture of [Plaintiff’s]
impairment ….” (Doc. #6, PageID #s 525-37, 677-80); 20 C.F.R. § 416.917(c)(2)(i).
The ALJ also briefly addressed the consistency of Dr. Rahman’s opinion with his
treatment notes. She accurately observed that Dr. Rahman’s opinion (which indicates
Plaintiff’s current GAF score is forty-five and her highest in the past year is forty) is
inconsistent with his treatment notes that indicate Plaintiff’s GAF scores range from fifty
to sixty. Id. at 66, 673. The ALJ further finds that Dr. Rahman’s opinion is not
consistent with parts of Plaintiff’s consultative exam with Dr. Bonds.4 She emphasizes
that, in contrast to Dr. Rahman’s opinion that Plaintiff was distractible, Dr. Bonds noted
Plaintiff could maintain attention and concentration during the exam and could recall five
random digits forward and five in reverse. Id. at 66. But these findings do not conflict
with Dr. Rahman’s opinion. He opined Plaintiff could not—on a regular, sustained basis,
in a routine work setting, in a competitive job placement—sustain attention and
concentration on her work to meet normal standards of work productivity and work
The ALJ further observed that Plaintiff obtained a Working Memory Index of 80
on the WAIS-IV, placing her in the low average range. Id. Notably, the ALJ does
acknowledge that Dr. Bonds opined, “[Plaintiff’s] working memory is below average”;
“Her ability to temporarily retain information in memory, perform some manipulation or
operation with it, and produce a result is below average”; and “she may have some
The ALJ assigned Dr. Bonds’ opinion “moderate weight.” (Doc. #6, PageID #65).
difficulty with working at a competitive speed and performing job tasks consistently.”
Id. at 466-68.
ALJ Motta, moreover, addressed supportability of Dr. Rahman’s opinion. She
acknowledged that Dr. Rahman’s opinion is supported by his notes indicating Plaintiff’s
symptoms included distractibility and lability. Id. at 66. The ALJ does not mention that
he frequently recorded that Plaintiff’s sleep was decreased and she was anxious and
guarded. Id. at 525-37, 677-80. But, she criticizes his notes as “not very detailed and do
not vary much in the way of mental status exams, yet [Plaintiff] testified that medications
help.” Id. at 66. His notes—brief as they may be—support his opinion.
The ALJ, however, criticizes Dr. Rahman’s notes further: “Dr. Rahman’s chart
notes additionally indicate that he prescribed Vyvanse …, which is used to treat ADHD, a
condition that was not listed as a diagnosis in his treatment notes, albeit her distraction
may be due to another reason.” Id. at 66-67 (internal citation omitted). The ALJ is
correct that Dr. Rahman did not diagnose Plaintiff with ADHD (Attention Deficit
Hyperactivity Disorder), but he did diagnose ADD (Attention-Deficit Disorder). Id. at
536, 673. Further, although Vyvanse (a brand name for lisdexamfetamine) can be “used
as part of a treatment program to control symptoms of attention deficit hyperactivity
disorder (ADHD; more difficulty focusing, controlling actions, and remaining still or
quiet than other people who are the same age) in adults and children[,]” it “may be
prescribed for other uses.” Lisdexamfetamine, MEDLINE PLUS,
https://medlineplus.gov/druginfo/meds/a607047.html (last updated 8/15/2016). Thus,
this does not constitute a good reason for rejecting Dr. Rahman’s opinion.
ALJ Motta, when questioning Dr. Rahman’s opinion that Plaintiff would
constantly require supervision and perpetual redirection, points to school records that
indicate “she did well in groups and participated well in discussions but benefited from
small group settings with minimal distractions.” (Doc. #6, PageID #67 (citing Exh. 2F at
43 [Doc. #6, PageID #430])). The ALJ left out the next—particularly relevant—
sentence: “[Plaintiff] needs verbal prompts and reminders to stay focus[ed] and
attentive.” Id. at 430. Indeed, Plaintiff’s short attention span is well documented
throughout her school records, beginning in 2001 when she was six years old and
repeated kindergarten. Id. at 415 (“She had difficulty following multi-step directions. …
[She] was described as very active with a short attention span.”). In 2010, an intervention
specialist, Marjorie Punter, observed, “She needs a great deal of encouragement to
complete her work and often does not use her class time wisely ….” Id. at 426. As a
result, Ms. Punter opined, “The teacher will have to watch [her] if she is working on her
own to ensure that she is really working.” Id.
Moreover, the ALJ’s reliance on Plaintiff’s school records is questionable given
that she did not have a copy of Plaintiff’s prior file—a file that may have contained
favorable psychological evaluations. Id. at 59. For example, the psychological
evaluation performed in 2008 that is in the record indicates that at that time, Plaintiff
reported difficulty with concentration and her grandfather reported she is distractible. Id.
at 557. Further, at the beginning of her decision, she states “It is clearly the claimant’s
current functioning that is the issue in this case.” Id. at 59.
The ALJ also found that Dr. Rahman did not provide any examples in support of
his conclusion that Plaintiff “tends to decompensate fairly rapidly when subjected to
stress ….” Id. at 67. She points out that the record does not contain any episodes of
decompensation that fit the Listings’ criteria and that “she has no mental health treatment
history until seeing Dr. Rahman beginning after her request for hearing upon the
cessation of her benefits.” Id. This, however, is not accurate. A treatment summary
from the Children’s Medical Center of Dayton shows that between March 4, 2008 and
August 12, 2008, Plaintiff attended fourteen therapy sessions with Sarah A. Fillingame,
Psy.D. Id. at 552. Plaintiff’s psychological evaluation indicates that Plaintiff was
referred to Children’s for therapy, and she was evaluated on three separate dates. Id. at
555. In addition, generally, “it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation.” Blankenship v.
Bowen, 874 F.2d 1116, 1125 (6th Cir. 1989). This is particularly relevant in light of
Plaintiff’s testimony that she is “afraid to go anywhere, afraid that somebody will harm
[her].” (Doc. #6, PageID #90).
In addressing supportability, ALJ Motta overlooks or ignores the support provided
by Dr. Rahman in his opinions. See 20 C.F.R. § 416.927(c)(3) (“The better an
explanation a source provides for a medical opinion, the more weight we will give that
medical opinion.”). And he provided a significant amount of support. For example, to
explain why he opined that Plaintiff could not sustain attention and concentration on her
work to meet normal standards of work productivity and work accuracy, Dr. Rahman
noted, “Due to considerable distractibility which are psychopathological hallmarks for
both ADD [and] Bipolar disorder. Due to uncontrollable racing thoughts which impair
attention/concentration.” (Doc. #6, PageID #667). And to explain why Plaintiff could
not get along with co-workers without unduly distracting them or exhibiting behavioral
extremes, he indicated, “Due to her unpredictable [and] erratic mood swings, will have a
tendency to distract others.” Id. at 670.
Throughout the ALJ’s evaluation of Dr. Rahman’s opinion, she repeatedly
“‘cherry-picked select portions of the record’ rather than doing a proper analysis.”
Gentry, 741 F.3d at 724 (quoting Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 435
(6th Cir. 2013)). For example, she highlights that Plaintiff’s Working Memory Index of
80 is in the low average range but leaves out that her Verbal Comprehension Index of 74,
Perceptual Reasoning Index of 77, Processing Speed Index of 79, and Full Scale IQ of 72
all fell in the borderline range. (Doc. #6, PageID #s 66, 466). The ALJ mentions that
Plaintiff testified that her medications help but she says nothing regarding Plaintiff’s
testimony that she talks to a counselor—Deborah—at Dr. Rahman’s office.5 Id. at 66,
89. As explained in more detail above, the ALJ cites only one small part of Plaintiff’s
school records and ignores evidence that supports Dr. Rahman’s opinion. “Substantiality
of the evidence must be based upon the record taken as a whole. Substantial evidence is
not simply some evidence, or even a great deal of evidence. Rather, the substantiality of
evidence must take into account whatever in the record fairly detracts from its weight.”
Plaintiff’s testimony is supported by a fax on July 30, 2014 to Deborah McMullen at Greene Pak
Psychiatry and response that noted that Plaintiff “has not seen our therapist more than once.” (Doc. #6,
PageID #526). At that time, Plaintiff had only seen Dr. Rahman three times.
Brooks v. Comm'r of Soc. Sec., 531 Fed Appx. 636, 641 (6th Cir. Aug. 6, 2013) (quoting,
in part, Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)).
The reasons provided by the ALJ for rejecting Dr. Rahman’s opinion are not
supported by substantial evidence and do not amount to “good reasons” for discounting
this treating psychiatrist’s opinion. The Sixth Circuit “has made clear that ‘[w]e do not
hesitate to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician’s opinion and we will continue remanding when we
encounter opinions from ALJ’s that do not comprehensively set forth the reasons for the
weight assigned to a treating physician’s opinion.’” Cole v. Astrue, 661 F.3d 931, 939
(6th Cir. 2011) (quoting Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009); see Bowen,
478 F.3d at 746 (“[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.” (citing Wilson, 378 F.3d at 54647)).
In contrast, ALJ Motta afforded the opinion of the State Agency psychologists
“great weight as it is supported by the medical evidence.” (Doc. #6, PageID #65).
Substantial evidence does not support the ALJ’s reliance on the opinion of the nonexamining, State agency psychologists. There is no indication in the ALJ’s decision that
she considered or applied the factors when she weighed Dr. Katz’s and Rivera’s opinions.
Id. This constitutes error because “[u]nless a treating source’s opinion is given
controlling weight, the administrative law judge must explain in the decision the weight
given to the opinions of a State agency medical or psychological consultant or other
program physician, psychologist or other medical specialist, as the administrative law
judge must do for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.” 20 C.F.R. § 416.927(e)(2)(ii).
Although there can be cases where opinions from State agency medical
consultants are entitled to greater weight than the opinions of treating physicians, such is
not the case here. Soc. Sec. R. 96-6p, 1996 WL 374180, at *3 (Soc. Sec. Admin. July 2,
1996); see Blakley, 581 F.3d at 408-409. Here, the non-examining psychologists based
their assessments, in part, on an incomplete record. Their review was conducted in
March and June 2013, before Plaintiff received a significant portion of her mental health
treatment. The ALJ did not account for this in her decision. As a result, substantial
evidence does not support the ALJ’s assignment of “great weight” to their assessments.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.
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 application for
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 Brittany Abney 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.
February 8, 2018
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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