Beckett v. Commissioner of SSA (TWP2)

Filing 28

MEMORANDUM AND ORDER: The Court ACCEPTS IN WHOLE the R&R under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). Thus, for the reasons stated in the R&R, which the Court adopts and incorporates into its ruling, Plaintiffs motion for summary judgment 17 is GRANTED IN PART, the Commissioners motion for summary judgment 21 is DENIED, and the Commissioners decision denying benefits is REVERSED AND REMANDED for further proceedings consistent with this order. Signed by District Judge Thomas W Phillips on 1/14/19. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
VICKI ANN BECKETT,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

No. 1:17-CV-303

MEMORANDUM AND ORDER
This Social Security appeal is before the Court for consideration of the
Commissioner’s objections [doc. 26] to the Report and Recommendation (“R&R”) filed
by United States Magistrate Judge Susan K. Lee [doc. 23]. The plaintiff has responded to
the Commissioner’s objections [doc. 27].

For the reasons that follow, the Court

OVERRULES the Commissioner’s objections and AFFIRMS Judge Lee’s finding that
Plaintiff’s motion for summary judgment [doc. 17] 1 should be GRANTED IN PART, the
Commissioner’s motion for summary judgment [doc. 21] should be DENIED, and the
decision of the Commissioner should be REVERSED AND REMANDED for further
proceedings.

1

Judge Lee correctly notes that Plaintiff’s first motion for summary judgment [doc. 15] is
identical to Plaintiff’s second motion for summary judgment [doc. 17]. Accordingly, the Court
agrees with Judge Lee’s recommendation that Plaintiff’s first motion for summary judgment [doc.
15] be TERMINATED.

I.

Background

Plaintiff filed her application for disability insurance benefits on July 25, 2013,
alleging disability beginning January 29, 2013. Plaintiff’s claims were denied initially and
on reconsideration at the agency level. On July 1, 2014, Plaintiff requested a hearing before
an administrative law judge (“ALJ”), which was held in Chattanooga, Tennessee, on
February 5, 2016. On August 25, 2016, the ALJ found that Plaintiff was not under a
disability, as defined in the Social Security Act, from the alleged onset date through the
date of the decision. The Appeals Council denied Plaintiff’s request for review, making
the ALJ’s decision the final decision of the Commissioner. Plaintiff timely filed the instant
action.
In her Disability Report, Plaintiff alleged disability due to “lung surgery, heart
condition, back and knee problems, diabetes, high blood pressure, breathing difficulty,
30% blockage in aorta, severe tendinitis.” At the hearing before the ALJ, Plaintiff also
indicated that she had issues with depression and anxiety that prevented her from working.
As supporting evidence, Plaintiff submitted medical records from Dr. Mark
Ofenloch, her treating psychologist. Dr. Ofenloch offered an opinion regarding Plaintiff’s
mental limitations on September 15, 2015, indicating that Plaintiff suffered from
“significant depression,” and “can function okay at times, but not consistently enough to
hold a job.” At that time, Dr. Ofenloch had been treating Plaintiff with individual therapy
sessions once or twice a month for nearly fourteen months. Plaintiff’s medical records
further indicated that Dr. Ofenloch had assigned her a global assessment of functioning
(“GAF”) rating of 38 in July 2014, at her initial visit.
2

Additionally, Plaintiff provided records from Dr. Caryn Brown, who performed two
psychological consultative exams on Plaintiff. The first was performed on November 29,
2013. Dr. Brown noted that Plaintiff “said her disability is primarily physical in nature,”
and when asked about “a history of mental health treatment,” Plaintiff responded, “Do I
have to answer that? I don’t worry about myself mentally cause I am never alone. I would
never hurt myself.” Dr. Brown noted that during the exam, Plaintiff “tearfully explained”
how she used to pay all of her household bills, but had become unable to because she loses
“her train of thought.” Dr. Brown found Plaintiff “demonstrated impairment in her ability
to sustain her concentration and attention,” and “may need assistance managing her funds.”
Dr. Brown diagnosed Plaintiff with depressive disorder not otherwise specified and ruled
out cognitive amnestic disorder, with a GAF rating of 55.
On December 19, 2013, Dr. Brown performed a second consultative exam. This
time, Dr. Brown found Plaintiff “demonstrated no impairment in her ability to sustain her
concentration and attention,” and that Plaintiff “appears capable of managing her funds.”
She concluded that Plaintiff’s test results did “not support an Amnestic Disorder or
Cognitive Disorder diagnosis.” She did not discuss her previous opinion about Plaintiff’s
depression, nor did she assign Plaintiff a new GAF rating.
After the hearing, the ALJ issued a written order, finding that Plaintiff was not
disabled. In conducting the five-step process, at step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since January 29, 2013, the alleged onset date.
At step two, the ALJ found that Plaintiff had the following severe impairments:
degenerative disc disease, diabetes mellitus, coronary artery disease, chronic obstructive
3

pulmonary disease, hearing loss, and chronic headaches. The ALJ also found that Plaintiff
had several non-severe impairments, including depression and anxiety. At step three, the
ALJ found that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. The ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform “medium work as defined in 20 CFR 404.1567(c) except she
can occasionally climb ladders, ropes, and scaffolds, she can frequently climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl, and, she must avoid concentrated exposure
to loud noise.” At step four, the ALJ found Plaintiff was unable to perform her past relevant
work. At step five, however, the ALJ found that Plaintiff was able to perform other work
existing in significant numbers in the national economy.
As to Plaintiff’s depression and anxiety, the ALJ discussed Dr. Ofenloch’s
September 2015 opinion as follows:
The undersigned gives Dr. Ofenloch’s [opinion] little weight as it is
inconsistent with the claimant’s reported functioning throughout the record,
it is inconsistent with Dr. Ofenloch’s own treatment of the claimant, it is not
well supported, it is not specific regarding the claimant’s workplace
limitations, and it opines on matters reserved to the Commissioner (20 CFR
404.1527(d)).
For example, Dr. Ofenloch indicates that the claimant has poor to no ability
to carry out short and simple instructions, yet the claimant reported to
Dr. Ofenloch that she cared for multiple pets and that, with the assistance of
an attorney, she has dealt with property she owned in Indiana and that was
inhabited by others. Furthermore, despite indicating that the claimant’s
depression is moderate to severe in his treatment notes, the undersigned has
found no evidence that Dr. Ofenloch has ever prescribed or recommended
the claimant any medications for depression or that Dr. Ofenloch has ever
conducted a formal mental status examination, and Dr. Ofenloch has seen the
claimant for fifty-minute therapy sessions approximately once to twice per
4

month since August 2014. In short, the evidence does not support
Dr. Ofenloch’s September 2015 opinion.
The ALJ did not discuss Dr. Ofenloch’s GAF rating. The ALJ also discussed Dr. Brown’s
December 2013 report, and quoted one aspect of Dr. Brown’s November 2013 report,
namely, that claimant had reported that her disability is primarily physical in nature,
however, the ALJ did not expressly assign weight to either opinion or otherwise explain
how he evaluated the opinions.
II.

Standard of Review

The Court’s review of Judge Lee’s R&R is de novo. 28 U.S.C. § 636(b). This
review, however, “is limited to a determination of whether substantial evidence exists in
the record to support the [Commissioner’s] decision and to a review for any legal errors.”
Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Title II
of the Social Security Act provides that “[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive[.]” 42
U.S.C. § 405(g). Accordingly, the reviewing court will uphold the ALJ’s decision if it is
supported by substantial evidence. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Substantial evidence has been defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial
evidence is “more than a mere scintilla of evidence, but less than a preponderance.” Bell
v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consol. Edison, 305 U.S.
at 229).
5

“Where substantial evidence supports the [Commissioner’s] determination, it is
conclusive, even if substantial evidence also supports the opposite conclusion.” Crum v.
Sullivan, 921 F.2d 642, 644 (6th Cir. 1990) (citing Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (en banc)). This standard of review is consistent with the well-settled rule
that the reviewing court in a disability hearing appeal is not to weigh the evidence or make
credibility determinations, because these factual determinations are left to the ALJ and to
the Commissioner. Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028, 1030 (6th
Cir. 1992). Thus, even if the Court would have come to different factual conclusions as to
the plaintiff’s claim on the merits, the Commissioner’s findings must be affirmed if they
are supported by substantial evidence. Hogg v. Sullivan, 987 F.2d 328, 331 (6th Cir. 1993).
III.

Analysis

The Commissioner objects to the Magistrate Judge’s finding that the ALJ did not
properly consider all of the opinion evidence presented, specifically, Dr. Ofenloch’s GAF
score and Dr. Brown’s reports. [Doc. 26 at 2-8]. The Commissioner also objects to the
Magistrate Judge’s finding that the ALJ’s step-two analysis is not supported by substantial
evidence, arguing that, even if the Magistrate Judge’s analysis of the opinion evidence is
correct, such evidence was not sufficient to undermine the ALJ’s finding as to step two.
[Id. at 9-10].
A. Dr. Ofenloch’s GAF Score
As to Dr. Ofenloch’s GAF score, the Commissioner notes that the Magistrate Judge
concluded that the ALJ was required to articulate his reasons for discounting the GAF score
of Dr. Ofenloch under a portion of Administrative Message 13066 Revised
6

(“AM-13066-REV”) which requires an ALJ to “provide good reasons” for not giving
controlling weight to a “GAF from a treating source.” [Doc. 26 at 4]. The Commissioner
also notes that in Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498 (6th Cir. 2013), the
Sixth Circuit, after the issuance of AM-13066, 2 said that no particular weight was to be
given to GAF scores, but the Magistrate Judge found Johnson distinguishable because the
GAF score in that case was issued by a one-time examiner, rather than a treating physician.
[Id. at 4-5]. However, the Commissioner contends that Dr. Ofenloch was not a treating
physician at the time of the GAF rating, which was made at the claimant’s intake
appointment, at which time there was not an ongoing treatment relationship to render
Dr. Ofenloch a treating physician. [Id. at 5]. The Commissioner asserts that, because
Dr. Ofenloch was not a treating physician at the time that he issued the GAF score,
AM-13066-REV does not apply, and the ALJ was not required to provide good reasons for
not giving the GAF score controlling weight. [Id.].
The Sixth Circuit takes a “case-by-case approach to the value of GAF scores.”
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 836 (6th Cir. 2016). ALJs are not required
to place any “particular amount of weight” on a GAF score. Johnson, 535 F. App’x at 508.
Indeed, the Sixth Circuit has held that “failure to reference a [GAF] score is not, standing
alone, sufficient ground to reverse a disability determination.” DeBoard v. Comm’r of Soc.
Sec., 211 F. App’x 411, 415 (6th Cir. 2006).

2

Notably, it appears that Johnson was decided after AM-13066 was issued, but before it
was revised.

7

In July 2013, the Social Security Administration (“SSA”) issued Administrative
Message 13066 (“AM-13066”), which stated in part that “[w]hen case evidence includes a
GAF from a treating source and you do not give it controlling weight, you must provide
good reasons in the personalized disability explanation or decision notice.” Walsh v.
Colvin, No. 3:15-cv-1708, 2016 WL 1752854, at *16 (N.D. Ohio May 3, 2016) (quoting
SSA, Global Assessment of Functioning (GAF) Evidence in Disability Adjudication,
AM-13066 (July 22, 2013)). In October 2013, the Sixth Circuit in Johnson found that the
ALJ did not err in failing to address a non-treating physician’s GAF score, because the ALJ
considered the claimant’s post-traumatic stress disorder and depression, and no particular
weight was required to be placed on a GAF score. Johnson, 535 F. App’x at 508.
Thereafter, the SSA issued AM-13066-REV, which stated that, although the
American Psychiatric Association’s fifth edition of the Diagnostic and Statistical Manual
of Mental Disorders does not include GAF ratings for assessment of mental disorders, “we
continue to receive and consider GAF in medical evidence.” Walsh, 2016 WL 1752854,
at *16 (quoting SSA, GAF Evidence in Disability Adjudication-REV, AM-13066-REV
(October 14, 2014)). Additionally, AM-13066-REV “states that ‘when case evidence
includes a GAF rating from a treating source, adjudicators must consider the GAF
rating . . . and provide good reasons in the personalized disability explanation or decision
notice why you assigned it the weight you assigned.’” Id. (quoting AM-13066-REV).
Several courts in this circuit have noted that the directive to provide “good reasons”
for the weight assigned to a GAF score from a treating source in AM-13066 and
AM-13066-REV appears to conflict with Sixth Circuit case law that ALJs are not required
8

to consider GAF scores. See e.g., McCoy v. Comm’r of Soc. Sec., No. 3:15-cv-2308, 2016
WL 6565559, at *14 (N.D. Ohio Nov. 4, 2016); Walsh, 2016 WL 1752854, at *17.
Additionally, this Court has noted that AM-13066 is a new policy that is contrary to this
Circuit’s prior policy that ALJs are not required to consider GAF scores. Rivera v. Comm’r
of Soc. Sec., No. 1:13-cv-337, 2015 WL 4550329, at *9 (E.D. Tenn. July 28, 2015).
The Court agrees with Judge Lee that under AM-13066-REV, the ALJ was required
to discuss the weight given to Dr. Ofenloch’s GAF rating, given that Dr. Ofenloch was the
claimant’s treating physician. Although prior case law held that an ALJ’s failure to address
a GAF rating was not reversible error, AM-13066 and AM-13066-REV appear to require
the ALJ to address a treating physician’s GAF score. Although the ALJ provided reasons
for giving little weight to Dr. Ofenloch’s September 2015 opinion, and such reasons may
likewise apply to Dr. Ofenloch’s GAF rating, the ALJ was required to provide “good
reasons” in his decision for discounting Dr. Ofenloch’s GAF rating, and this Court will not
presume what the ALJ’s “good reasons” may have been.
As to the Commissioner’s argument that AM-13066-REV is inapplicable because
Dr. Ofenloch was not a treating source at the time of his July 2014 GAF rating, this Court
finds such argument unpersuasive. A “treating source” is defined as the medical source
who provides the claimant “with medical treatment or evaluation” and has “an ongoing
treatment relationship with” the claimant. 20 C.F.R. § 404.1527(a)(2). An ongoing
treatment relationship is established when the claimant sees “the source with a frequency
consistent with accepted medical practice for the type of treatment and/or evaluation
required for [the claimant’s] medical condition(s).” Id. A single visit to a physician does
9

not constitute an ongoing treatment relationship rendering that physician a treating source.
Miller, 811 F.3d at 836 n.7; Kornecky v. Comm’r, 167 F. App’x 496, 506-07 (6th Cir.
2006).
Here, the Commissioner appears to agree that Dr. Ofenloch became the claimant’s
treating physician by the time of his September 2015 opinion, but argues that Dr. Ofenloch
was not yet a treating physician at the time of the July 2014 GAF rating, because the GAF
rating was provided at the claimant’s first appointment. However, the Commissioner does
not cite any case law that supports making distinctions between opinions provided by a
treating physician at the beginning of the treatment relationship and those provided later in
the treatment relationship. Although in Kornecky the Sixth Circuit noted that a single visit
to a psychologist was insufficient to render the psychologist a treating source, and declined
to address whether the psychologist could have become a treating source in the future, see
Kornecky, 167 F. App’x at 506, here, in contrast, the claimant continued to see
Dr. Ofenloch, who did in fact become her treating source. This Court finds no basis for
concluding that Dr. Ofenloch’s medical opinion from Plaintiff’s initial visit, which was
never amended during the treatment relationship, should not be afforded the protections
provided for medical opinions from a treating source. Accordingly, this Court finds that
AM-13066-REV was applicable, and the ALJ was required to provide good reasons for
discounting Dr. Ofenloch’s GAF rating. Moreover, “because a federal agency is obligated
to follow its own regulations, and because that regulation confers a procedural protection
on disability claimants,” the ALJ’s failure to provide good reasons for discounting
Dr. Ofenloch’s GAF score cannot be harmless error. Kornecky, 167 F. App’x at 507.
10

B. Dr. Brown’s Medical Reports
As to Dr. Brown’s medical reports, the Commissioner asserts that such reports were
not “medical opinions,” because Dr. Brown failed to state “what Plaintiff could still do,”
and therefore, contrary to the Magistrate Judge’s conclusion, the ALJ did not err in failing
to expressly assign any particular weight to these reports. [Doc. 26 at 8].
Although an ALJ is not bound by any findings made by non-treating physicians, the
ALJ must evaluate a consultative physician’s opinion using the relevant factors in 20
C.F.R. § 404.1527(c)(2)-(6), the same factors used to analyze the opinion of a treating
physician. 20 C.F.R. § 404.1527(c).

“Unless a treating source’s opinion is given

controlling weight,” the ALJ “must explain in the decision the weight given to the opinions
of . . . nontreating sources.” Id. § 404.1527(e)(2)(ii). “Medical opinions” are defined as
“statements from acceptable medical sources that reflect judgments about the nature and
severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis
and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s]
physical or mental restrictions.” Id. § 404.1527(a)(2).
The R&R addresses the Commissioner’s argument that Dr. Brown’s reports are not
“medical opinions,” and this Court agrees that the Commissioner’s distinction between
“medical reports” and “medical opinions” is not compelling. The Code does not indicate
that a psychologist’s report that reflects judgments about the nature and severity of the
claimant’s impairment, but fails to state what the claimant can still do despite the
impairment, cannot be considered a medical opinion. Likewise, the Commissioner has
cited no legal source that indicates such. Accordingly, this Court agrees with Judge Lee
11

that Dr. Brown’s reports constituted medical opinions, and the ALJ was required to give
some explanation as to how he evaluated these opinions, since the claimant’s treating
source’s opinions were not given controlling weight. This Court further agrees with Judge
Lee that this error was not harmless, as Dr. Brown’s opinions contained a GAF rating of
55, which indicates “moderate symptoms or moderate difficulty in social or occupational
functioning.” Kornecky, 167 F. App’x at 511 (citing the Diagnostic and Statistical Manual
of Mental Disorders, Am. Psychiatric Ass’n, 4th ed. (2000)). Such GAF score is thus
inconsistent with the ALJ’s findings concerning Plaintiff’s mental impairments, and this
Court will not offer its own post hoc rationale as to why the ALJ discredited Dr. Brown’s
opinion.
C. Step Two Analysis
Finally, the Commissioner contests the Magistrate Judge’s conclusion that the two
opinion evidence errors discussed above render the ALJ’s step-two analysis unsupported
by substantial evidence. [Doc. 26 at 9]. The Commissioner asserts that the ALJ provided
a thorough discussion of the evidence that demonstrate that Plaintiff’s mental impairments
did not cause more than minimal impact on her ability to perform basic work activities,
and the existence of conflicting evidence, including GAF ratings and Dr. Brown’s
examination findings, does not invalidate the ALJ’s conclusions. [Id. at 10].
The Court agrees with Judge Lee that the ALJ’s step-two analysis is not supported
by substantial evidence because the ALJ failed to address Dr. Ofenloch’s GAF rating and
failed to weigh Dr. Brown’s opinions, both of which play a significant role in the step-two
analysis. Although the Commissioner correctly notes that the existence of conflicting
12

evidence does not invalidate an ALJ’s conclusions under the substantial evidence standard,
because the ALJ did not address how he evaluated, or what weight he attributed to,
Dr. Ofenloch’s GAF score and Dr. Brown’s reports, it is not clear that the ALJ discounted
this conflicting evidence in favor of other evidence. Thus, although the ALJ cited other
evidence supporting his conclusion, that the claimant’s limitations were mild, to deem the
evidence from Dr. Ofenloch’s GAF score and Dr. Brown’s reports simply conflicting
evidence that does not require reversal would require this Court to assume that the ALJ
considered this evidence and dismissed it in favor of other evidence, which is not reflected
by the current record. This Court declines to address what weight the ALJ would have
given to this evidence, and instead, agrees with the R&R that the ALJ’s failure to address
the weight given to this evidence is reversible error in the step-two analysis.
IV.

Conclusion

After a careful review of the record and the parties’ pleadings, the Court is in
complete agreement with the Magistrate Judge’s recommendation that Plaintiff’s motion
for summary judgment be granted in part, the Commissioner’s motion for summary
judgment be denied, and the Commissioner’s decision denying benefits be reversed and
remanded. Accordingly, the Court ACCEPTS IN WHOLE the R&R under 28 U.S.C.
§ 636(b)(1) and Fed. R. Civ. P. 72(b). Thus, for the reasons stated in the R&R, which the
Court adopts and incorporates into its ruling, Plaintiff’s motion for summary judgment
[doc. 17] is GRANTED IN PART, the Commissioner’s motion for summary judgment
[doc. 21] is DENIED, and the Commissioner’s decision denying benefits is REVERSED
AND REMANDED for further proceedings consistent with this order.
13

IT IS SO ORDERED.

s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE

14