Price Nju v. Commissioner of Social Security

Filing 15

DECISION AND ENTRY- IT IS THEREFORE ORDERED THAT: 1. The Commissioners Motion to Remand (Doc. # 12 ) be GRANTED, in part, as to the requested remand to the Social Security Administration, and DENIED, in part, as to the request for further administrat ive proceedings; 2. The Commissioners non-disability finding be reversed; 3. This matter be remanded to the Social Security Administration under sentence four of 42 U.S.C. § 405(g) for payment of benefitsregarding Plaintiff Linda Price Njus appl ication for a period of disability and disability insurance benefits protectively filed on June 29, 2011 and application for supplemental security income protectively filed on March 1, 2012, and benefits be awarded to Plaintiff consistent with the Social Security Act; and 4. The case is terminated on the docket of this Court. Signed by Magistrate Judge Sharon L. Ovington on 10/27/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LINDA PRICE NJU,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-518
:
:
: Magistrate Judge Sharon L. Ovington
:
(by full consent of the parties)
:
:
:
:
:
:

DECISION AND ENTRY
I.

Introduction
Plaintiff Linda Price Nju applied for period of disability and Disability Insurance

Benefits on July 7, 2011 and for Supplemental Security Income on March 13, 2012. She
asserted that she has been under a benefits-qualifying disability since April 4, 2008.
Administrative Law Judge (ALJ) Irma J. Flottman concluded that she was not eligible for
benefits because she is not under a “disability” as defined in the Social Security Act.
The Appeals Council denied Plaintiff’s request for review, and she filed a previous
action in United States District Court for the Southern District of Ohio. See Price Nju v.
Comm’r of Soc. Sec., 3:14-cv-455, 2016 WL 74998 (S.D. Ohio Jan. 7, 2016) (Report &
Recommendation), adopted 2016 WL 319869 (S.D. Ohio Jan. 26, 2016). The Court
vacated the Commissioner’s decision and remanded the case pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings. Id. at *2. Upon remand, on

December 22, 2014, ALJ Mark Hockensmith found that Plaintiff was not under a
disability.
Plaintiff challenges the ALJ’s non-disability decision in the present case. The
parties agree that a remand to the Social Security Administration is warranted. They
disagree, however, on whether the remand should be for an award of benefits in
Plaintiff’s favor or whether further administrative proceedings are needed. The case is
before the Court upon the Commissioner’s Motion to Remand (Doc. #12), Plaintiff’s
Response (Doc. #13), and the administrative record (Doc. #6).
II.

Standard of Review
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 v. Comm’r of Soc. Sec., 581 F.3d 399, 410 (6th Cir. 2009);
Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994). “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.’” Kalmbach v. Comm’r
of Soc. Sec., 409 F. App’x 852, 865 (6th Cir. 2011) (quoting, in part, Faucher v. Sec’y of
Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)). A judicial award of benefits
is proper “only where the proof of disability is strong, and opposing evidence is lacking
in substance, so that remand would merely involve the presentation of cumulative

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evidence, or where the proof of disability is overwhelming.” Id. (citing Faucher, 17 F.3d
at 176; Felisky, 35 F.3d at 1041; Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir.1985)).
III.

Discussion
The Commissioner seeks remand of this case for further administrative

proceedings and a new decision. According to the Commissioner, “Upon receipt of the
Court’s order, the Appeals Council will instruct the Administrative Law Judge to
reevaluate the opinions of the state agency reviewing psychologists as previously ordered
by the Court, develop the administrative record as necessary to determine whether
Plaintiff is disabled within the meaning of the Social Security Act, and issue a new
decision.” (Doc. #12, PageID #2610).
Review of the evidence of record, including Plaintiff’s medical history and the
medical-source opinions, reveals the presence of strong evidence that Plaintiff was under
a benefits-qualifying disability. The strong evidence includes opinions presented by
Plaintiff’s treating medical source, Dr. Patel.
Dr. Patel completed a mental impairment questionnaire on February 4, 2013.
(Doc. #6, PageID #1480). He diagnosed Bipolar I Disorder, recurrent, mixed, and
alcohol and cocaine dependence in full sustained remission. Id. He identified Plaintiff’s
signs and symptoms: sleep disturbance, mood disturbances, emotional lability, recurrent
panic attacks, anhedonia or pervasive loss of interests, difficulty thinking or
concentrating, two suicide attempts, decreased energy, racing thoughts, generalized
persistent anxiety, and hostility/irritability. Id. at 1480-81. Plaintiff’s treatment includes
individual therapy, case management, and several medications—Invega, Cymbalta,
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Wellbutrin SR, Trazadone, and Neurontin. Id. at 1481. Despite treatment, her prognosis
is guarded. Id.
Dr. Patel opined that Plaintiff’s psychiatric condition exacerbates her experience
of pain and can lower her pain threshold. Id. Additionally, he indicated Plaintiff has a
moderate restriction of activities of daily living; moderate difficulties in maintaining
social functioning; marked deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner; and marked episodes of deterioration or
decompensation in work. Id. at 1482. On average, Plaintiff would be absent from work
more than three times a month as a result of her impairments and treatment. Id. Dr. Patel
concluded, “Due to chronic anxiety, mood lability, trouble being around people and back
pain, she is unlikely to work 40 hours/week.” Id.
A review of ALJ Hockensmith’s decision reveals many errors and the strength of
Dr. Patel’s opinions. ALJ Hockensmith acknowledges that this “Court remanded the
claimant’s applications for more thorough evaluation of medical source opinion
evidence.” (Doc. #6, PageID #117) (internal citation omitted). He then discusses some
of the problems raised by the Court. The ALJ begins, “In addressing the issues raised by
the Court in its remand order, it is important to recognize that at the time that he rendered
his opinion evidence, Dr. Patel had, by his own estimate, treated the claimant only a few
times (‘every 2-3 months’ over the course of one year).” Id. at 126. Although the length
of treatment relationship and frequency of examination are factors to be considered, it is
also “important to recognize” that “these factors are properly applied only after the ALJ
has determined that a treating-source opinion will not be given controlling weight.”
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Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. §
404.1527(c)(2)). Further, Dr. Patel saw Plaintiff six times between February 7, 2012 and
February 4, 2013—an average of every two months. (Doc. #6, PageID #s 1402, 1425,
1445, 1462, 2438, 2540). The ALJ further omits that Plaintiff—in addition to treatment
with Dr. Patel—attended individual therapy at Daymont. Specifically, during that same
time period, Plaintiff saw a counselor fourteen times. Id. at 2418-516.
ALJ Hockensmith added, “It is interesting to note that on the date he completed
his assessment of the claimant’s mental condition (February 4, 2013), the evidence shows
that his most recent prior contact with the claimant had been on October 15, 2012 - more
than three months earlier. Hence, the claimant was not being treated very often by Dr.
Patel.” Id. at 127 (citation omitted). The ALJ, however, is incorrect. Dr. Patel saw
Plaintiff on February 4, 2013—the very same day he completed his evaluation.
ALJ Hockensmith also relies on many of ALJ Flottman’s reasons for rejecting Dr.
Patel’s opinion—the same reasons that this Court previously rejected. For example, he
found that ALJ Flottman properly rejected Dr. Patel’s opinions because of Plaintiff’s
“moderate” Global Assessment of Functioning scores: “it cannot be denied that assigned
GAF scores consistently align with ‘moderate’ symptoms - even the GAF score assigned
the claimant by Dr. Patel.” Id. at 127 (citation omitted). But, at the time of ALJ
Hockensmith’s decision in September 2016, the use of GAF was no longer recognized by
the American Psychiatric Association as a valid psychiatric measurement tool. See
Diagnostic and Statistical Manual of Mental Disorders at p. 16 (Am. Psych. Ass’n, 5th
ed. 2013) (DSM-V) (eliminating GAF upon the recommendation “that the GAF be
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dropped from [DSM-V] for several reasons, including its conceptual lack of clarity ... and
questionable psychometrics in routine practice”). Consequently, Plaintiff’s GAF ratings
were not reasonably probative evidence in conflict with Dr. Patel’s opinions, see Barnett
v. Colvin, No. 3:14cv003, 2015 WL 471243, at *11 (S.D. Ohio Feb. 4, 2015)1 (quoting
Oliver v. Comm’r of Soc. Sec., 415 F. App’x 681, 684 (6th Cir. 2011) (“‘A GAF score is
thus not dispositive of anything in and of itself ….’”)).2
Further, ALJ Hockensmith found, “the Court questioned the prior administrative
law judge’s finding that Dr. Patel, a psychiatrist, based his conclusion that the claimant
would be ‘unlikely to work’ 40 hours per week on factors outside his realm of expertiseto wit, ‘back pain.’” (Doc. #6, PageID #126) (citations omitted). And he is correct, the
Court found that ALJ Flottman “overemphasized that Dr. Patel, a psychiatrist, referred to
Plaintiff’s back pain as a reason to conclude she was unlikely to work 40 hours per week.
The ALJ rejected this conclusion as ‘purely speculative’ because Dr. Patel treated
Plaintiff’s mental impairments not her physical impairments.” Price Nju, 2016 WL
74998, at *7. The Court rejected ALJ Flottman’s conclusion: “the ALJ’s finding that he

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R&R adopted, 2015 WL 777646 (S.D. Ohio Feb. 24, 2015).
In a 2016 case, Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 836 (6th Cir. 2016), the Sixth Circuit
continued to acknowledge the GAF’s usefulness to ALJs. Miller, however, relied on a case from 2012,
Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002), which was decided well before the
DSM V dropped the GAF scale in 2015. Additionally, Miller evaluated an ALJ’s decision in 2011 before
the DSM V eliminated the GAF scale in 2015. And, Miller is silent about whether ALJs may use GAF
scores to discount a treating psychiatrist’s opinions after DSM V dropped the GAF scale. Miller is
therefore distinguished from the present case, which addresses ALJ Hockensmith’s September 2016
decision, after the effective date of DSM V.
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was engaged in pure speculation was simply wrong and unsupported by substantial
evidence.” Id.
Somewhat surprisingly, ALJ Hockensmith disagrees: “despite the Court’s
insistence that Dr. Patel’s conclusions are not speculative, it is difficult to classify such
statements as ‘… how often do you anticipate that [the claimant’s’ [sic] impairments or
treatment would cause [the claimant] to be absent from work [emphasis added]’ and ‘…
she is unlikely to work 40 hours [per] week [emphasis added]’ as anything but
speculative. Dr. Patel was asked to theorize as to the frequency of such possibilities and,
as such, his statements cannot be viewed as anything but speculation.” (Doc. #6, PageID
#127) (alterations in original).
But it was not the Court’s insistence—it is the Court’s Order. And, Social
Security ALJs are not free to ignore Judicial Orders:
In some Social Security cases, district courts will
include detailed instructions concerning the scope of the
remand and the issues to be addressed. In such cases,
“[d]eviation from the court’s remand order in subsequent
administrative proceedings is itself legal error, subject to
reversal on further judicial review.” Sullivan v. Hudson, 490
U.S. 877, 886, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). See
also Mefford v. Gardner, 383 F.2d 748, 758 (6th Cir. 1967)
(noting “the general rule that, on the remand of a case after
appeal, it is the duty of the lower court, or the agency from
which appeal is taken, to comply with the mandate of the
court and to obey the directions therein without variation and
without departing from such directions.”). These cases stand
for the proposition that the administrative law judge may not
do anything expressly or impliedly in contradiction to the
district court’s remand order. These cases do not preclude the
ALJ from acting in ways that go beyond, but are not
inconsistent with, the district court’s opinion.

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Hollins v. Massanari, 49 F. App’x 533, 536 (6th Cir. 2002). ALJ Hockensmith’s finding
that Dr. Patel’s “statements cannot be viewed as anything but speculation” is inconsistent
with this Court’s previous holding.
Further, Plaintiff’s treatment records from pain specialists support Dr. Patel’s
opinion. For example, Plaintiff began treatment with Abdul Shahid, M.D., at the Dayton
Pain and Spine Center in September 2014. Dr. Shahid noted, “The patient’s underlying
psychological dysfunction namely depression, anxiety, and nervousness is significantly
modulating her pain perceptions.” (Doc. #6, PageID #2518). And, Plaintiff has
undergone extensive treatment for her back pain. Between January 2014 and May 2015,
for example, she saw a pain specialist—Lisa Lichota, D.O., Angela M. Prickett, N.P., or
Abdul Shahid, M.D.—approximately once every month for treatment of her severe pain.
Id. at 1758-89, 2517-53.
Next, ALJ Hockensmith concludes, “Evidence documenting any impairment that
would result in a ‘marked’ degree of limitation as described by Dr. Patel is lacking in this
case and the claimant has not met the required burden of proof.” Id. at 127. He notes
“that Dr. Patel, when asked to describe clinical findings which demonstrate the severity
of the claimant’s mental impairment, relied upon the claimant’s self-reported symptoms
stating that the claimant ‘reports anxiety, mood swings, having crying spells...’” Id. at
127 (citation omitted).
Yet again, the ALJ’s finding conflicts with the Court’s Order:
Dr. Patel identified many signs and symptoms Plaintiff
exhibited. The ALJ assumes too much by finding that
Plaintiff’s signs and symptoms were based “only” on Dr.
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Patel’s uncritical acceptance of Plaintiff’s reports. It is
equally or even more likely that Dr. Patel identified these
findings based on his observations of Plaintiff during his
treatment sessions with her. Symptoms such as Plaintiff’s
mood disturbances, emotional lability, anhedonia or pervasive
loss of interests, paranoia or inappropriate suspiciousness, and
hostility and irritability can be exhibited and identified by a
psychiatrist free from an uncritical acceptance of subjective
statements by Plaintiff. … Dr. Patel, moreover, indicated
elsewhere that Plaintiff appeared anxious with mild lability
and was paranoid when around people. Such observations
were consistent with other signs and symptoms Dr. Patel
identified, rather than an uncritical acceptance of her selfreported symptoms.
Price Nju, 2016 WL 74998, at *7 (internal citations omitted).
The ALJ further finds, “It is interesting to note that more recent mental health
records indicate that the claimant was ‘discharged by Dr. Patel’ although the basis for his
discontinuance of treatment is not evident. The claimant told another treating source that
Dr. Patel did not ‘want to do anything about my anxiety.’” (Doc. #6, PageID #127
(citing Exhibit 46F at 1 [Doc. #6, PageID #2137]). But this overlooks or ignores two
significant pieces of evidence. First, Plaintiff said more than what ALJ Hockensmith
indicates: “‘I was discharged by Dr. Patel. Geodon made me very evil. He didn’t want
to do anything about my anxiety. I asked for a different case manager because I couldn’t
understand him, and I never even met my therapist until right before I was discharged.’”
Id. at 2137. Second, a review of Dr. Patel’s treatment notes from June 5, 2013 provide a
reasonably clear explanation: After reporting negative side effects of her medication,
Plaintiff “[s]tated undersigned is using her as a [guinea] pig trying all new meds. She
started becoming more and more agitated, hostile and degrading undersigned. Stated she

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does not know who made undersigned physician. … As she was quite upset and difficult
to engage, undersigned requested staff nurse Virgina Neuhauser to be present during the
rest of the interview. She was still angry, raising voice to undersigned, not providing
answers to direct questions, accusing undersigned [of] not providing good care to
patients, questioning about being medical director, etc….” Id. at 2508. Significantly,
this evidence further supports Dr. Patel’s opinion.
The ALJ then gives “the degree of limitation described by psychologist Dr.
Flexman little weight” for “much the same reasons.” Id. at 128. He speculates, “If the
claimant maintains compliance with the proper use of prescribed medication and if she
refrains from abusing drugs and alcohol, she should be quite capable of functioning in an
effective manner (consistent with no worse than “moderate” limitation in mental
functioning capabilities) as clearly indicated by both Dr. Patel and Dr. Kramer and as
further supported by the most recent mental health treatment records.” Id. at 128
(citations omitted) (emphasis added). But, ALJ Hockensmith is not a physician, and “an
ALJ ‘may not substitute his own medical judgment for that of the treating physician
where the opinion of the treating physician is supported by the medical evidence.’”
Simpson v. Comm’r of Soc. Sec., 344 F. App’x. 181, 194 (6th Cir. 2009) (quoting, in part,
Meece v. Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006)) (citing Rohan v. Chater, 98
F.3d 966, 970 (7th Cir. 1996) (stating “ALJs must not succumb to the temptation to play
doctor and make their own independent medical findings”)). Neither Dr. Patel nor Dr.
Flexman suggests that Plaintiff “should be quite capable of functioning ….”

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Plaintiff’s recent mental health treatment records also support Dr. Patel’s opinions.
For example, after stopping treatment with Dr. Patel, Plaintiff presented to Giovanni
Bonds, Ph.D. (Doc. #6, PageID #1719). At Plaintiff’s second appointment, Dr. Bonds
opined, “I think Linda needs to go to a mental health center so that she can have
psychiatric treatment [and] the counseling [and] case management services she needs.
The level of care she needs is beyond what this office can provide for her. …” Id. at
1718. This does not suggest, as ALJ Hockensmith found, that Plaintiff is “quite capable
of functioning in an effective manner[.]” Id. at 128.
Plaintiff then began seeing Shirlann Knight, M.D. in August 2015. Id. at 2160.
And, at first it appeared that she found a combination of medication that helped. Her
insight and judgment remained limited, but, she was sleeping better and had less racing
thoughts with Depakote. Id. at 2152-62. By March 2016, she was having trouble
sleeping again and “her son thinks she is irritable.” Id. at 2571. She began having racing
thoughts, she was not sleeping, and she was depressed and irritable. Id. at 2573. Dr.
Knight prescribed Abilify. Id. at 2574. When Plaintiff’s symptoms continued, Dr.
Knight increased her dose. Id. at 2576. Despite medication, Plaintiff’s symptoms
continued. Id. at 2579.
In contrast to Dr. Patel’s opinion, the State agency record-reviewing
psychologists, Dr. Orosz and Dr. Lewin, opined Plaintiff was far less limited by her
impairments. They indicated Plaintiff had a mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning; moderate difficulties in
maintaining concentration, persistence or pace; and no repeated episodes of
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decompensation. Id. at 235, 249. They opined Plaintiff was “limited to tasks without
detailed instructions”; could have “[m]inimum contact with the general public”; “[c]ould
interact with coworkers and supervisors on an occasional and superficial basis”; and
“[c]ould adapt to a work environment that did not require frequent change or high
production quotas.” Id. at 239, 253-54.
Notably, Dr. Orosz reviewed Plaintiff’s records in September 2011 and Dr. Lewin
reviewed the records in January 2012. Id. at 239, 254. Thus, neither reviewed the entire
record—and neither reviewed Dr. Patel’s opinion. Nevertheless, ALJ Hockensmith
relied on these opinions heavily—giving several of their opinions “great weight.” Id. at
128-29. Although he relies substantially on their opinions to reject Dr. Patel’s opinions,
he did not explain his reasons for the weight he assigned. This constitutes error:
“Nothing in the regulations indicates, or even suggests, that the administrative judge may
decline to give the treating physician’s medical opinion less than controlling weight
simply because another physician has reached a contrary conclusion.” Hensley v. Astrue,
573 F.3d 263, 267 (6th Cir. 2009). The Commissioner, in the Motion for Remand, seems
to acknowledge this error: “Upon receipt of the Court’s order, the Appeals Council will
instruct the Administrative Law Judge to reevaluate the opinions of the state agency
reviewing psychologists as previously ordered by the Court ….” (Doc. #12, PageID
#2610).
However, upon review of the record as a whole, and given that Dr. Orosz and Dr.
Lewin did not have the benefit of the opinions provided by Plaintiff’s treating physician,
their opinions are minimally probative. This is especially true when compared to Dr.
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Patel’s opinions and extensive treatment notes and the objective medical evidence
presented which supports his opinions.
In light of the fact that Plaintiff filed for disability over six years ago, and in light

of the strong evidence of record while contrary evidence is lacking, there is no just reason
to further delay this matter by requiring additional administrative proceedings. See
Karger v. Comm’r of Soc. Sec., 414 F. App’x 739, 755 (6th Cir. 2011) (discussing
Mowery, 771 F.2d at 973 (other citation omitted)); Benecke v. Barnhart, 379 F.3d 587,
595 (9th Cir. 2004); Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998); Randall v.
Sullivan, 956 F.2d 105, 109 (5th Cir. 1992). Accordingly, a reversal of the ALJ’s
decision and a judicial award of benefits are warranted.
IT IS THEREFORE ORDERED THAT:
1.

The Commissioner’s Motion to Remand (Doc. #12) be GRANTED,
in part, as to the requested remand to the Social Security
Administration, and DENIED, in part, as to the request for further
administrative proceedings;

2.

The Commissioner’s non-disability finding be reversed;

3.

This matter be remanded to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for payment of benefits
regarding Plaintiff Linda Price Nju’s application for a period of
disability and disability insurance benefits protectively filed on June
29, 2011 and application for supplemental security income
protectively filed on March 1, 2012, and benefits be awarded to
Plaintiff consistent with the Social Security Act; and
4. The case is terminated on the docket of this Court.

Date: October 27, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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