Hall v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS - re 3 IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioners non-disability finding be found unsupported by substantial evidence, and REVERSED; (2) this matter be 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 be CLOSED. Objections to R&R due by 7/26/2018. Signed by Magistrate Judge Michael J. Newman on 7/12/18. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SCOTT E. HALL,
Plaintiff,

Case No. 3:17-cv-345

vs.
COMMISSIONER OF SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE 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 BE CLOSED

This is a Social Security disability benefits appeal. At issue is whether the Administrative
Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to
Supplemental Security Income (“SSI”) and/or Disability Insurance Benefits (“DIB”).2 This case
is before the Court upon Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum
in opposition (doc. 10), Plaintiff’s reply (doc. 11), the administrative record (doc. 7), and the record
as a whole. 3

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
“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. § 404.1520 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed record will refer only to the PageID number.

I.
A.

Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of October 3, 2013. PageID
246-56. Plaintiff claims disability as a result of a number of alleged impairments including, inter
alia, headaches, anxiety, and a mood disorder. PageID 48.
After initial denial of his applications, Plaintiff received a hearing before ALJ Elizabeth A.
Motta on April 4, 2016. PageID 65-86. The ALJ issued a written decision on July 11, 2016 finding
Plaintiff not disabled. PageID 46-59. Specifically, the ALJ found at Step Five that, based upon
Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of medium work,4
“there are jobs in that exist in significant numbers in the national economy that [he] can perform[.]”
PageID 51-58.
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 36-38. 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 46-59),
Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum in opposition (doc. 10),

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. “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. § 404.1567(c). 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.” Id.
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and Plaintiff’s reply (doc. 11). 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 nondisability 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 742,745-46
(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
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“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(a)(4). 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; and

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 his Statement of Errors, Plaintiff argues that the ALJ erred by: (1) improperly evaluating
a joint medical opinion from treating psychiatrist Sunita Agarwal, M.D. and treating therapist
Mark Schweiker, LPCC-S, LICDC5; and (2) creating an RFC unsupported by substantial evidence.

Dr. Agarwal’s opinion was co-authored with Plaintiff’s treating therapist, Mr. Schweiker. PageID
495-97. While mental health therapists are not included among the acceptable sources of medical evidence,
see 20 C.F.R. § 404.1513, this opinion was co-authored by Dr. Agarwal, an acceptable source. As a result,
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Doc. 9 at PageID 631-39. Finding error in the ALJ’s assessment of the joint opinion, the Court
does not address Plaintiff’s second error. Instead, the undersigned would direct that the ALJ
consider Plaintiff’s second error on remand.
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
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).

the joint opinion is from a treating source and is entitled to review under 20 C.F.R. § 404.1527(c)(2). See
Schumpert v. Comm’r of Soc. Sec., No. 3:17-cv-288, 2018 U.S. Dist. LEXIS 76349, at *7 n.4 (S.D. Ohio
May 7, 2018).

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Closely associated with the treating physician rule is the “good reasons rule,” which
“require[s] the ALJ to always give good reasons in [the] notice of determination or decision for
the weight given to the claimant’s treating source’s opinion.” Blakley, 581 F.3d at 406-07. “Those
good reasons must be ‘supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.’” Id.
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)).
Here, the medical opinion evidence of record includes, as noted, a joint opinion from
treating psychiatrist Dr. Agarwal and treating therapist Mr. Schweikert. PageID 495-97. They
opine Plaintiff is “markedly”6 impaired in social interaction, sustained concentration and
persistence, and adaptation. Id. They further opine Plaintiff “has panic disorder with agoraphobia
which is [negatively affected] by small or large numbers [of people]”; “has extreme anxiety
[which] would make it impossible to work 8 hours a day”; and “has daily panic attacks made worse
by any social interaction.” PageID 495, 497.
In assessing the joint opinion, the ALJ states:
[It] is given some weight to the extent there is need for restrictions. However, the
work factors assessed as marked and extreme cannot be accepted as, too, the
speculation that he would be absent 5 days or more a month (actually, this is not a
“Marked” limitations are suggestive of disability. 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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narrative by either the counselor or the doctor but merely checked off on the
attorney’s question form.). As noted above, their GAF scores were in the moderate
range. There are multiple inconsistencies with regard to his driving (even noted by
the counselor as being inconsistent with not having a driver’s license and his
allegations of agoraphobia, the latter also inconsistent with his report to the
counselor that he was a “people person”)…. Treatment has not been extensive and
only began after [Plaintiff] was denied at the initial level. Accordingly, no
controlling or deferential weight is given to that opinion to the extent it is co-signed
by Dr. Agarwal. For the same reasons, no weight is given these sources.
PageID 55.
Initially, the Court notes that although the ALJ stated she did not afford the joint opinion
controlling or deferential weight, she failed to mention or discuss the requisite factors in a
controlling weight determination, i.e., whether or not the opinion is well-supported by medically
acceptable evidence and consistent with other substantial evidence in the record. PageID 54-55;
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). As a result, the Court cannot
determine whether the ALJ undertook the “two-step inquiry” required when analyzing treating
source opinions. See Chrismon v. Colvin, 531 F. App’x 893, 900 (10th Cir. 2013). This failure
amounts to error because the lack of explanation regarding the “controlling weight [analysis]
hinders a meaningful review of whether the ALJ properly applied the treating-physician rule that
is at the heart of this regulation.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir.
2013) (citations omitted). While the ALJ stated that the opinion was “a check off form,” this
consideration is relevant only after the ALJ decides not to give controlling weight to such an
opinion. Id. at 376; see PageID 55; see also 20 C.F.R. § 404.1527(c)(3) (stating that “[t]he better
an explanation a source provides for an opinion, the more weight we will give that opinion”).
Additionally, in examining Plaintiff, Dr. Agarwal assessed a Global Assessment of

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Functioning (“GAF”)7 score of 55. PageID 603. The ALJ improperly focused on this score with
regard to Plaintiff’s functional abilities -- a score indicative of moderate (i.e., non-disabling)
impairments. PageID 54-55. However, 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, courts conclude that GAF scores have
“little value in assessing disability.” Id. (citations omitted). Accordingly, 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-CV278, 2015 WL 6857852, at *5 (S.D. Ohio Sept. 14, 2015) (citations omitted).
Lastly, with regard to treatment, in assigning “no great weight” to the joint opinion, the
ALJ noted that Plaintiff did not seek treatment until he was denied benefits at the initial
administrative level. The ALJ’s reasoning in this regard does not go towards the weight to assign
to a medical source, but rather goes towards assessing Plaintiff’s credibility. See Jones v. Astrue,
No. 1:11-cv-228, 2012 U.S. Dist. LEXIS 81346, at *28-32 (S.D. Ohio June 12, 2012) (finding that
a plaintiff’s failure to seek mental health treatment may be considered, along with any reasons
offered for that failure, as a non-determinative factor in assessing credibility).

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 [DSMV] 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 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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Consistent with the foregoing authority, the undersigned finds the ALJ’s analysis
unsupported by substantial evidence.
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). In this instance,
evidence of disability is not overwhelming, and remand for further proceedings -- as specifically
set forth above -- is proper.
V.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability
finding be found unsupported by substantial evidence, and REVERSED; (2) this matter be
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 be CLOSED.
Date:

July 12, 2018

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

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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 Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if
served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however,
this Report and Recommendation was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the
deadline to file objections by filing a motion for extension, which the Court may grant upon a
showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation 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. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is extended
to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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