Nugent v. Commissioner of Social Security

Filing 20

DECISION AND ORDER - IT IS THEREFORE ORDERED THAT: 1. Plaintiffs Statement of Errors (Doc. 13 ) is GRANTED; 2. The Court REVERSES the Commissioners non-disability determination; 3. No finding is made as to whether Plaintiff was under a disability wi thin the meaning of the Social Security Act; 4. This matter is REMANDED to the Social Security Administration under Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent with this Decision and Order; and 5. This case is terminated on the Courts docket. Signed by Magistrate Judge Caroline H. Gentry on 9/16/22. (pb)

Case: 3:20-cv-00470-CHG Doc #: 20 Filed: 09/16/22 Page: 1 of 13 PAGEID #: 1210

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BARBARA N., 1
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:20-cv-00470
:
: Magistrate Judge Caroline H. Gentry
: (by full consent of the parties)
:
:
:
:
:

DECISION AND ORDER
I.

INTRODUCTION
Plaintiff filed an application for Supplemental Security Income (SSI) on July 11,

2017. Plaintiff’s claims were denied initially and upon reconsideration. After a hearing at
Plaintiff’s request, the Administrative Law Judge (ALJ) concluded that Plaintiff was not
eligible for benefits because she was not under a “disability” as defined in the Social
Security Act. The Appeals Council denied Plaintiff’s request for review. Plaintiff
subsequently filed this action.
Plaintiff seeks an order remanding this matter to the Commissioner for the award
of benefits or, in the alternative, for further proceedings. The Commissioner asks the
Court to affirm the non-disability decision. This matter is before the Court on Plaintiff’s

See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
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Statement of Errors (Doc. 13), the Commissioner’s Memorandum in Opposition (Doc.
18), Plaintiff’s Reply (Doc. 19), and the administrative record (Doc. 10).
II.

BACKGROUND
Plaintiff asserts that she has been under a disability since July 1, 2017. 2 She was

forty-seven years old on the SSI application date. Accordingly, Plaintiff was considered a
“younger person” under Social Security Regulations. See 20 C.F.R. § 416.963(c).
Plaintiff has a “limited education.” See 20 C.F.R. § 416.964(b)(3).
The evidence in the administrative record is summarized in the ALJ’s decision
(Doc. 10-2, PageID 54-66), Plaintiff’s Statement of Errors (Doc. 13), the Commissioner’s
Memorandum in Opposition (Doc. 18), and Plaintiff’s Reply (Doc. 19). Rather than
repeat these summaries, the Court will discuss the pertinent evidence in its analysis
below.
III.

STANDARD OF REVIEW
The Social Security Administration provides SSI 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. §§ 402, 423(a)(1), 1382(a). The term “disability” means
“the inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a).
Regardless of the actual or alleged onset of disability, an SSI claimant is not entitled to SSI benefits
prior to the date that the claimant files an SSI application. Thus, the relevant period of consideration in
this case begins on July 11, 2017. See 20 C.F.R. § 416.335; Koster v. Comm’r of Soc. Sec., 643 Fed.
Appx. 466, 478 (6th Cir. 2016) (“For purposes of SSI, which is not retroactive, the relevant period here is
. . . the date [Plaintiff] filed his protective application.”).

2

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This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“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 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Id.
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). This limited standard of review does not permit the Court to weigh the
evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(citation omitted).
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
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(6th Cir. 2009). “[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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
IV.

FACTS
1.

The ALJ’s Factual Findings

The ALJ was tasked with evaluating the evidence related to Plaintiff’s application
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
the Social Security Regulations. See 20 C.F.R. § 416.920. The ALJ made the following
findings of fact:
Step 1:

Plaintiff has not engaged in substantial gainful activity since July 11,
2017, the SSI application date.

Step 2:

She has the severe impairments of anxiety, chronic obstructive
pulmonary disease (COPD), depression, diabetes, intellectual
disorder, obesity, peripheral neuropathy, and post-traumatic stress
disorder (PTSD).

Step 3:

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.

Step 4:

Her residual functional capacity (RFC), or the most she can do
despite her impairments, see Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 239 (6th Cir. 2002), consists of light work subject to the
following limitations: “[S]he can frequently climb ramps and stairs,
occasionally work in dust, odors, fumes, and pulmonary irritants, but
never climb ladders, ropes or scaffolds, never work at unprotected
heights, and never around machinery with moving mechanical parts.
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She is limited to simple work-related decisions and simple, routine
tasks with no assembly line work or strictly enforced daily
production quotas, and few changes in a routine work setting[.]”
She has no past relevant work.
Step 5:

Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that she can perform.

(Doc. 10-2, PageID 56-65.) These findings led the ALJ to conclude that Plaintiff does not
meet the definition of disability and so is not entitled to benefits. (Id. at PageID 65-66.)
B.

Dr. Molly Hall, M.D. and Laura Hovanec, C.N.P.

Treating psychiatrist Dr. Hall completed a Mental Functional Capacity
Assessment for the Ohio Department of Job and Family Services (ODJFS) in July 2019.
(Doc. 10-7, PageID 643-44.) Dr. Hall indicated that Plaintiff experienced moderate
limitation in several areas of work-related mental functioning. (Id. at Plaintiff 643.) Dr.
Hall also opined that Plaintiff experienced marked limitation in the following abilities:
remembering instructions and work-like procedures; understanding, remembering, and
carrying out detailed instructions; maintaining attention and concentration for extended
periods; performing activities within a schedule; maintaining regular attendance; being
punctual within customary tolerances; completing a normal workday and workweek
without interruptions from psychologically-based symptoms; performing at a consistent
pace without an unreasonable number and length of rest periods; accepting instructions
and responding appropriately to criticism from supervisors; responding appropriately to
changes in the work setting; traveling in unfamiliar places or using public transportation;
and setting realistic goals or making plans independently of others. (Id.) Dr. Hall
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additionally indicated that Plaintiff was “unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous
period of not less than nine months.” (Id.)
Certified nurse practitioner Ms. Hovanec completed a Basic Medical Form for the
ODJFS in November 2018. (Doc. 10-8, PageID 645-46.) Ms. Hovanec opined that
Plaintiff could lift and/or carry no more than five to ten pounds either frequently or
occasionally. (Id. at PageID 646.) She indicated no impairment in Plaintiff’s ability to sit,
stand, or walk. (Id.) According to Ms. Hovanec, Plaintiff was moderately limited in the
ability to reach and was “not significantly limited” in the ability to push, pull, and handle.
(Id.) Ms. Hovanec found no limitation in the ability to balance, perform repetitive foot
movements, bend, hear, and speak. (Id.)
Dr. Hall’s form comprises the first two pages of Exhibit 11F (Doc. 10-7, PageID
643-44), and the form completed by Ms. Hovanec covers the last two pages of Exhibit
11F. (Doc. 10-7, PageID 645-46.) Unfortunately, the ALJ apparently failed to realize that
two different providers completed the two different ODJFS forms in Exhibit 11F. Instead,
he evaluated Dr. Hall’s and Ms. Hovanec’s opinions in one paragraph, wrongly attributed
all of the opinions to Dr. Hall, and found them not persuasive:
Molly Hall, M.D., a treating doctor, opined in July 2019 that [Plaintiff] was
markedly or moderately limited in all paragraph “B” criteria and was limited
to not lifting more than ten pounds. Dr. Hall opined her sitting was not
affected; she was moderately limited in reaching; not significantly limited in
pushing/pulling and handling; and not limited in bending, handling, and
repetitive hand movements. Dr. Hall listed diagnoses of type II diabetes
mellitus, hypertension, COPD, GERD, neuropathy, environmental allergies,
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and right shoulder pain. Medications included Novolog, Lidoderm, Prilosec,
Claritin, ibuprofen, Lipitor, and albuterol (Exhibit 11F). The undersigned
finds the opinion of Dr. Hall not persuasive since the record does not show
that she is qualified to render opinions on the claimant’s mental limitations
nor is it supported by the diagnoses that she lists. Furthermore, the opinion
is internally inconsistent since she diagnosed the claimant with right shoulder
pain yet finds the claimant is not significantly limited in pushing/pulling and
handling (Exhibit 11F). Finally, the opinion is inconsistent with the opinions
of Dr. Siddiqui and Dr. Bucci, State agency medical consultants, who found
that [Plaintiff] could perform a range of light work (Exhibits 1A, pages 1112 and 3A, pages 10-12).
(Doc. 10-2, PageID 64.)
V.

LAW AND ANALYSIS
Plaintiff contends that the ALJ reversibly erred in evaluating the opinions of

treating psychiatrist Dr. Hall and nurse practitioner Ms. Hovanec (Doc. 13, PageID 117778.) Finding error in the ALJ’s analysis of the opinion of Dr. Hall, the Court does not
address the other claimed error and, instead, instructs the ALJ to address all of these
issues on remand.
A.

Applicable Law

Social Security regulations require ALJs to adhere to certain standards when
evaluating medical opinions. ALJs must analyze the persuasiveness of “all of the medical
opinions” in the record. 20 C.F.R. § 404.1520c (emphasis added). A “medical opinion”
is a “statement from a medical source about what [an individual] can still do despite [her]
impairment(s)” and whether the individual has one or more impairment-related
limitations or restrictions. 20 C.F.R. § 404.1513(a)(2). By contrast, a statement from a
medical source about an issue reserved to the Commissioner—such as whether an
individual is disabled—need not be addressed by the ALJ. 20 C.F.R. § 404.1520b(c)(3).
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Because Plaintiff filed her claim in July 2017, the new regulations for evaluating
medical opinion evidence apply to this case. Under these regulations, the ALJ “will not
defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s) . . . .” 20 C.F.R.
§ 416.920c(a). Instead, the ALJ must evaluate the persuasiveness of each medical opinion
and prior administrative medical finding by considering the following factors: (1)
supportability; (2) consistency; (3) relationship with the plaintiff; (4) specialization; and
(5) any other factor “that tend[s] to support or contradict a medical opinion or prior
administrative medical finding.” 20 C.F.R. § 416.920c(c).
Significantly, because the first two factors–supportability and consistency–are the
“most important” ones, the ALJ “will explain” how he or she considered them. 20 C.F.R.
§ 416.920c(b)(2) (emphasis added). 3 As to the first factor (supportability), “[t]he more
relevant the objective medical evidence and supporting explanations presented by a
medical source are to support his or her medical opinion(s) . . . the more persuasive the
medical opinions . . . will be.” 20 C.F.R. § 416.920c(c)(1). As to the second factor
(consistency), “[t]he more consistent a medical opinion(s) . . . is with the evidence from
other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) . . . will be.” 20 C.F.R. § 416.920c(c)(2).

3
By contrast, the ALJ “may, but [is] not required to,” explain the consideration given to the remaining factors. 20
C.F.R. § 416.920c(b)(2).

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B.

The ALJ Erred In His Analysis Of Dr. Hall’s Opinion

As noted above, the ALJ mistakenly conflated the opinions of Dr. Hall and nurse
practitioner Ms. Hovanec. (Doc. 10-7, PageID 643-46.) At least in part because of this
mistake, the ALJ did not comply with the applicable regulations when he analyzed Dr.
Hall’s opinion. In addition, the ALJ’s analysis of Dr. Hall’s opinion is not supported by
substantial evidence. For both of these reasons, the ALJ erred and reversal is required.
1.

The ALJ’s analysis did not comply with the applicable regulations.

The ALJ analyzed the opinions of Dr. Hall and nurse practitioner Ms. Hovanec in
a single analysis. The only circumstance under which an ALJ is permitted to evaluate
opinions in a single analysis is “when a medical source provides multiple medical
opinion(s) or prior administrative medical finding(s).” 20 C.F.R. § 416.920c(b)(1). Here,
because the opinions contained in Exhibit 11F were provided by two different medical
sources, the ALJ was not permitted to evaluate them in a single analysis. The ALJ’s
failure to comply with this regulation constitutes reversible error.
The ALJ also failed to consider the persuasiveness and explain his analysis of the
consistency factor of Dr. Hall’s opinion. 20 C.F.R. § 416.920c(b)(1)-(2), 416.920c(c)(1).
The ALJ’s analysis of Dr. Hall’s opinion consists of one sentence: “The undersigned
finds the opinion of Dr. Hall not persuasive since the record does not show that she is
qualified to render opinions on the claimant’s mental limitations nor is it supported by the
diagnoses that she lists.” (Doc. 10-2, PageID 64.) At most, this analysis addresses the
“supportability” and “specialization” factors of 20 C.F.R. § 416.920c(c). The ALJ failed
to explain his consideration of the “consistency” factor, as required by 20 C.F.R.
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§ 416.920c(c)(2), because he did not explain how he analyzed Dr. Hall’s opinion in light
of evidence in the record from other medical or nonmedical sources. This procedural
violation is also an error.
Defendant argues that “the record does not contain any objective findings or
evidence which would demonstrate a reasonable probability the ALJ would have found
Plaintiff disabled had he not mixed up the opinions from Dr. Hall and Ms. Hovanec.”
(Doc. 18, PageID 1200.) It is not the role of this Court to guess how the ALJ might have
ruled if he had not made this particular mistake. See Runyon v. Comm'r of Soc. Sec., No.
2:20-CV-3820, 2021 WL 3087639, at *6 (S.D. Ohio July 22, 2021) (Vascura, M.J.),
report and recommendation adopted, No. 2:20-CV-3820, 2021 WL 3489615 (S.D. Ohio
Aug. 9, 2021) (Watson, D.J.) (citation omitted). Moreover, contrary to Defendant’s
contention, there is evidence in the record that supports Dr. Hill’s opinions. This evidence
includes the opinion of consultative psychologist Gordon Harris, Ph.D. (Doc. 10-7,
PageID 355-357.) Whether this evidence would, or would not, have led to a different
result must be decided by the ALJ in the first instance, not this Court.
Contending that Dr. Hall’s opinion was “rendered in regard to an application for
public welfare,” Defendant relies on 20 C.F.R. § 416.904 to argue that “disability
assessments prepared under the authority of other agencies are not dispositive in Social
Security cases.” (Doc. 18, PageID 1201.) Defendant’s reliance on Section 416.904 is
misplaced. That regulation only limits the ALJ’s consideration of disability decisions by
other governmental agencies. 20 C.F.R. § 416.904. It does not limit the consideration of

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disability assessments to other governmental agencies. Therefore, the ALJ could consider
the opinion of treating psychiatrist Dr. Hall even if it was also provided to ODJFS.
2.

The ALJ’s analysis of Dr. Hall’s opinion is not supported by
substantial evidence.

The ALJ reasoned that Dr. Hall’s opinion is not persuasive because “the record
does not show that she is qualified to render opinions on the claimant’s mental limitations
nor is it supported by the diagnoses that she lists.” (Doc. 10-2, PageID 64.) These reasons
are unsupported by substantial evidence.
Dr. Hall is a psychiatrist who treated Plaintiff for approximately two years before
providing her opinion. (see Doc. 10-7, PageID 451-56.) Dr. Hall is therefore indeed
qualified to render an opinion about Plaintiff’s mental functioning and limitations. The
ALJ’s contrary finding is unsupported by substantial evidence in the record.
The ALJ’s finding that Dr. Hall’s opinion is unsupported by “the diagnoses that
she lists” is unsupported by substantial evidence. The ALJ wrongly compared Dr. Hall’s
opinion on the Mental Functional Capacity Assessment to the diagnoses listed by Ms.
Hovanec—not by Dr. Hall—on the Basic Medical Form. (Doc. 10-2, PageID 64;
compare Doc. 10-8, PageID 643-44 with Doc. 10-8, PageID 645-46.) The mental health
progress notes show that Dr. Hall and other providers at Samaritan Behavioral Health did
in fact diagnose conditions such as depression, chronic post-traumatic stress disorder, and
dysthymic disorder (e.g., Doc. 10-7, PageID 392, 451.)
The ALJ’s findings regarding the persuasiveness of Dr. Hall’s opinion are also
unsupported by substantial evidence because they are based on a selective (as well as
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incorrect) review of the record. The ALJ failed to consider whether Dr. Hall’s opinion
was supportable by evidence from Dr. Hall or consistent with evidence from other
medical and nonmedical sources. According to the mental health treatment notes,
Plaintiff’s providers consistently documented abnormalities of a depressed or “stressed”
mood and an anxious, sad, tearful, flat, dysphoric, and/or restricted affect. (Doc. 10-7,
PageID 395, 399, 402, 408, 426, 454, 458, 505, 533, 541, 590, 593; Doc. 10-10, PageID
976, 1009-10, 1014, 1035, 1040-41, 1046, 1050-51, 1063-64, 1081, 1105.) The mental
status examinations also showed slowed motor activity, avoidant eye contact,
distractibility, and poor to fair insight and judgment on some occasions. (Id.) The opinion
of Dr. Harris (Doc. 10-7, PageID 355-357) is arguably also consistent. The ALJ’s failure
to address this evidence—or any evidence—when evaluating Dr. Hall’s opinion signifies
an impermissibly selective review of the record. See Gentry v. Comm’r of Soc. Sec., 741
F.3d 708 723-23 (citing Minor v. Comm'r of Soc. Sec., 513 F. App’x 417, 435 (6th
Cir.2013) (reversing where the ALJ “cherry-picked select portions of the record”)).
For the reasons stated, the ALJ erred in his analysis of the opinion of Dr. Hall.
VI.

REMAND
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
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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 neither overwhelming nor strong while contrary evidence is
lacking. Faucher, 17 F.3d at 176. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to Sentence Four of Section
405(g) for the reasons stated above. On remand, the ALJ should evaluate the evidence of
record under the applicable legal criteria mandated by the Commissioner’s regulations
and rulings and governing case law. The ALJ should evaluate Plaintiff’s disability claim
under the required five-step sequential analysis to determine anew whether Plaintiff was
under a disability and whether her SSI application should be granted.
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s Statement of Errors (Doc. 13) is GRANTED;

2.

The Court REVERSES the Commissioner’s non-disability determination;

3.

No finding is made as to whether Plaintiff was under a “disability” within
the meaning of the Social Security Act;

4.

This matter is REMANDED to the Social Security Administration under
Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Order; and

5.

This case is terminated on the Court’s docket.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

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