Dimizio v. Social Security Administration, Commissioner of

Filing 39

ORDER granting 31 Motion for Summary Judgment; denying 32 Motion for Summary Judgment; adopting Report and Recommendations re 34 Report and Recommendations. This case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g)for further proceedings consistent with this Order. Signed by District Judge Harry S Mattice, Jr on 9/13/2017. (BDG, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE
DONNA DIMIZIO,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:16-cv-6
Judge Mattice
Magistrate Judge Corker

ORDER
On December 16, 2016, United States Magistrate Judge Clifton L. Corker filed a
Report and Recommendation (Doc. 34) pursuant to 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(b). Magistrate Judge Corker recommended that: (1) Plaintiff’s
Motion for Summary Judgment (Doc. 31) be granted; (2) Defendant’s Motion for
Summary Judgment (Doc. 32) be denied; and (3) that this case be remanded for further
proceedings. (Doc. 34 at 17).
The basis for Magistrate Judge Corker’s recommendation for remand is that the
ALJ failed to “give good reasons” for not affording controlling weight to Plaintiff’s treating
source opinion. (Id. at 16). Defendant filed timely objections to the Magistrate Judge’s
Report and Recommendation. (Doc. 35). Specifically, Defendant argues that: (1) the
Magistrate Judge erred in finding that the ALJ did not satisfy the procedural safeguards
of the treating physician rule; (2) substantial evidence supports the ALJ’s decision to give
no evidentiary weight to the opinion of Plaintiff’s treating physician; and (3) substantial
evidence supports the ALJ’s conclusion that Plaintiff’s mental impairment was not severe.
The Court, having conducted a de novo review of those portions of the record implicated

by Defendant’s objections to the Report and Recommendation, agrees with Magistrate
Judge Corker’s well-reasoned conclusions for the reasons stated herein. 28 U.S.C. §
636(b)(3).
I.

TREATING PHYSICIAN RULE

“[T]he Commissioner’s regulations establish a hierarchy of acceptable medical
source

opinions[.]’”

Snell

v.

Comm’r

of

Soc.

Sec.,

2013

WL

372032,

at

*9 (S.D. Ohio Jan. 30, 2013). A treating physician’s opinion must be afforded “controlling
weight” if it is “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 Fed. Appx. 377, 384 (6th Cir. 2013). Courts
bestow this degree of deference to treating physician opinions 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. § 404.152(c)(2).
When an ALJ does not give a treating source opinion controlling weight, he is still
required to “determine how much weight is appropriate by considering a number of
factors, including the length of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any specialization of the
treating physician.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);
see also 20 C.F.R. § 404.1527(c). The United States Court of Appeals for the Sixth Circuit
has stressed the importance of disability decision makers clearly articulating the weight
they afford treating source opinions and their corresponding explanation:

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Importantly, the Commissioner imposes on its decision makers a clear duty
to “always give good reasons in our notice of determination or decision for
the weight we give [a] treating source’s opinion.” 20 C.F.R. §
404.1527(d)(2). 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.” Soc. Sec. Rul. No.
96-2p, 1996 SSR LEXIS 9, at *12 (Soc. Sec. Admin. July 2, 1996). This
requirement is not simply a formality; it is to safeguard the claimant’s
procedural rights. It is intended “to let claimants understand the disposition
of their cases, particularly in situations where a clamant knows that his
physician has deemed him disabled and therefore might be especially
bewildered when told by an administrative bureaucracy that he is not.”
Wilson, 378 F.3d at 544.
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). Thus, relevant authority requires the
ALJ to both clearly articulate his reasons for not assigning a treating physician opinion
controlling weight and that these reasons be “good.” 20 C.F.R. § 404.1527(d)(2).
Moreover, where an ALJ fails to adequately explain the weight given to a treating source
opinion, it is not enough that substantial evidence otherwise supports his decision.
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004) (“Although
substantial evidence otherwise supports the decision of the Commissioner in this case,
reversal is required because the agency failed to follow its own procedural regulation, and
the regulation was intended to protect applicants like [the plaintiff].”).
II.

MAGISTRATE JUDGE’S FINDINGS AND CONCLUSIONS

The Court will only outline those portions of the Report and Recommendation that
are relevant to Defendant’s objections. As outlined above, Magistrate Judge Corker found
that the ALJ erred in failing to adequately explain why he assigned no evidentiary weight
to the treating source opinion issued by Dr. Harold Elliott. (Doc. 34 at 16). Dr. Elliott was
Plaintiff’s treating psychiatrist for the duration of her alleged period of disability. He also
provided treatment to Plaintiff before her alleged onset date of May 29, 2013. In January

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2013, Dr. Elliott issued a treating source opinion regarding the severity of Plaintiff’s
limitations. (Doc. 22-8). This opinion was included in the medical records considered by
the ALJ. The ALJ disregarded Dr. Elliott’s opinion in his decision denying benefits,
however, writing only that the opinion “was prepared prior to the amended alleged onset
date” and concluding that it was “not assigned evidentiary weight.” (Doc. 22-2 at 20).
In his Report and Recommendation, Magistrate Judge Corker addressed
Defendant’s contention that Plaintiff failed to dispute the ALJ’s evaluation of any of her
physicians’ opinions. Notwithstanding the brevity of Plaintiff’s arguments in this regard,
the Magistrate Judge found Plaintiff’s submissions to be adequate as to Dr. Elliott’s
opinion. Specifically, he reasoned, “Dr. Elliott is set out in plaintiff’s table of medical
sources, and it states that it was accorded no evidentiary weight. This is an assertion of
error in the making of that finding, even if somewhat unartfully raised.” Id.
Magistrate Judge Corker then outlined relevant authority for the treating physician
rule, and found that the rule applied to Dr. Elliott’s opinion. He found that “the ALJ’s
reason for giving the opinion no evidentiary weight, because it was rendered before the
claim was filed, is an insufficient reason under the applicable regulations and the cases
cited above.” Id. Magistrate Judge Corker noted that Dr. Elliott’s opinion was “rendered
less than four months before the application for benefits was filed.” Id. Finally, the
Magistrate Judge reasoned that although “there was other evidence mentioned by the ALJ
to support his finding that the plaintiff did not have a severe impairment . . . . that does
not cure the failure to give good reasons for the weight given to Dr. Elliott.” Id.
As to Plaintiff’s assertion that the ALJ erred in finding that she did not have a
severe impairment, the Magistrate Judge found that he could not determine that issue at

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the current juncture. Rather, he found that its disposition “would have to wait until the
ALJ explains the lack of weight given to Dr. Elliott.” (Doc. 34 at 17).
III.

DEFENDANT’S OBJECTIONS

Defendant first argues that Plaintiff did not sufficiently raise her argument
regarding Dr. Elliott’s opinion in her Motion for Summary Judgment to warrant
subsequent review. (Doc. 35 at 3). Defendant further argues that Plaintiff raised specific
arguments in regard to other physicians, but not as to Dr. Elliott. (Id. at 4). Although the
Court concedes that Plaintiff devoted only brief consideration to the issue, it disagrees
with Defendant’s conclusion. Magistrate Judge Corker noted that Plaintiff cited Dr.
Elliott’s opinion, stated that the ALJ assigned the opinion no evidentiary weight, and
contended that the ALJ failed to follow the treating physician rule. (Docs. 31 at 4-5; 34 at
16). These efforts will suffice. That Plaintiff may have directed more specific attacks at
other issues does not render her arguments regarding Dr. Elliott void. Accordingly, the
Court finds that this objection is without merit and it will be OVERRULED.
Next, Defendant asserts that the ALJ complied with the procedural safeguards of
the treating physician rule in that his reason for assigning no weight to Dr. Elliott’s
opinion was sufficiently specific. (Doc. 35 at 4). In the same vein, Defendant argues that
the ALJ’s reason for discounting Dr. Elliott’s opinion establishes a “good reason” and
finds support in the record. (Id. at 4; 5-6).
The only reason given by the ALJ for assigning no weight to Dr. Elliott’s opinion
was that it predated the onset of Plaintiff’s disability by four months. (Doc. 22-2 at 20).
As set forth above, an ALJ must set forth specific justifications for his disregard of a
treating source opinion, and those justifications must constitute “good reasons.” 20
C.F.R. § 404.1527(d)(2). In his Report and Recommendation, Magistrate Judge Corker
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found flaws in the sufficiency of the ALJ’s explanation rather than its specificity: “The
Court is of the opinion that the ALJ’s reason for giving the opinion no evidentiary weight,
because it was rendered before the claim was filed, is an insufficient reason under the
applicable regulations and cases cited above.” (Doc. 34 at 16).
The Sixth Circuit has expressly held that it does “not endorse the position that all
evidence or medical records predating the alleged date of the onset of disability . . . are
necessarily irrelevant or automatically barred from consideration[.]” Deboard v. Comm’r
of Soc. Sec., 211 Fed. Appx. 411, 414 (6th Cir. 2006). Rather, the Sixth Circuit “recognize[s]
that evidence . . . predating the onset of disability, when evaluated in combination with
later evidence, may help establish disability.” Id. (emphasis in original). Other circuit
court of appeals, including the Tenth Circuit, share this approach. See Carpenter v.
Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (holding that the ALJ is required to consider
all evidence—including evidence predating an alleged onset date—and must specifically
“discuss the significantly probative evidence he rejects”) (internal quotations omitted).
In addition, relevant social security regulations provide that “[w]e will consider all
evidence in your case record when we make a determination or decision whether you are
disabled[.]” 20 C.F.R. § 404.1520. Regulations further provide that “[r]egardless of its
source, we will evaluate every medical opinion we receive.” 20 C.F.R. § 404.1527(c).
Several trial courts have expressly found an ALJ’s disregard of a treating source opinion
to be improper when based on the reasoning that the opinion predated the claimant’s
onset date. See, e.g., O’Malley v. Comm’r of Soc. Sec., 210 F. Supp. 3d 909, 915 (S.D. Ohio
2016); Daniel v. Colvin, 2015 WL 5530210, at *4 (S.D. Ohio Sept. 21, 2015). In those cases,
the court found the predating opinions especially relevant because they tended to support
a finding of disability. Id. Likewise, the Sixth Circuit has held that the ALJ’s failure to
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discuss a highly relevant treating medical source opinion “in any substantive way violates
the requirement that administrative agencies . . . explain their reasoning” and constitutes
sufficient grounds for remand. Keeton v. Comm’r of Soc. Sec., 583 Fed. Appx. 515, 52929 (6th Cir. 2014).
In this case, Dr. Elliott’s opinion described Plaintiff’s ability to deal with the public,
cope with stress, and relate predictably in social situations as “poor.” He opined that
Plaintiff suffered from “severe PTSD” and that she was “unable to react to stress or
confrontations without marked distress or impairment.” He stated that Plaintiff had
“poor sleep, hypervigilance, autonomic arousal, and irritability.” Finally, in regard to any
work-related activities affected by an impairment, Dr. Elliott explained that Plaintiff
experienced “difficulty relating to co-workers and difficulty in reliability.” He also
explained that her “stress reactivity causes irritability [and] hypervigilance leading to
overreactions [and] . . . poor sleep.” (Doc. 22-8 at 195-197).
Dr. Elliott issued his opinion a mere four months before Plaintiff’s alleged
disability onset date, and continued treating Plaintiff after her onset date. Curiously, the
ALJ considered Dr. Elliott’s treatment notes for Plaintiff from as far back as 2012, despite
his later assertion that Dr. Elliott’s 2013 opinion was irrelevant. (Doc. 22-2 at 17). Thus,
the ALJ’s failure to discuss the treating source opinion with any degree of depth is
considerably troubling. Moreover, Dr. Elliott’s opinion suggests substantial mental and
behavioral limitations, especially in areas of social functioning, and there is other
evidentiary support for these conclusions in the record. The ALJ noted that Plaintiff
avoided social activities and that Dr. Sims (whose treating source opinion he assigned
“great evidentiary weight”) reported that Plaintiff was depressed, anxious, and had
restricted affect. (Doc. 22-2 at 19). Nonetheless, based on Plaintiff’s cooperative nature at
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her other medical appointments and adequate communication skills, the ALJ found only
mild limitation in social functioning. Because Dr. Elliott’s opinion appears directly
relevant to this particular analysis, the ALJ’s omission in examining Dr. Elliott’s opinion
or providing adequate justification for that omission cannot be construed as harmless
error.
Defendant cites Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009) for
the proposition that a treating source opinion issued outside the relevant time period
comprises a “good reason” for the ALJ rejecting that opinion. The Sixth Circuit’s holding
in Allen, however, is more attenuated than what Defendant represents. In Allen, the ALJ
rejected a treating source opinion that stated a claimant’s symptoms were unchanged
since 2003. The ALJ explained that the reason he disregarded this opinion was that the
physician had only begun treating the claimant in 2005, and there was no basis in the
record to support a conclusion that the physician had any knowledge of the claimant’s
symptoms in 2003. 561 F.3d at 651. The facts of Allen are readily distinguishable from
this case, including but not limited to the fact that the ALJ provided a detailed explanation
for why the treating source opinion carried little evidentiary weight. Here, the ALJ merely
stated that the opinion carried no weight because it predated Plaintiff’s onset date. For
the reasons outlined above, such a conclusory justification is inadequate.
In sum, Plaintiff was entitled to receive “good reasons” why Dr. Elliott’s opinion
describing the nature and severity of her impairments was not afforded controlling
weight—or any evidentiary weight at all. See 20 C.F.R. § 404. 1527(c)(2). Additionally, it
is not clear that the outcome of Plaintiff’s disability determination would have been the
same had Dr. Elliott’s opinion been considered. For these reasons, Defendant’s objections
in this regard will be OVERRULED.
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Next, Defendant’s suggests that the ALJ’s assignment of any evidentiary weight to
Dr. Elliott’s opinion would have been improper in light of Plaintiff’s previous disability
claim and subsequent denial on February 21, 2013. (Doc. 35 at 6). As outlined above, Dr.
Elliott’s opinion issued on January 24, 2013. According to Defendant, if the ALJ assigned
evidentiary weight to the opinion and “reconsidered Plaintiff’s prior claim on the merits,”
such an act could be characterized as a “constructive reopening” of the previous denial.
(Id.).
“[W]here a claim has been reconsidered on the merits, it is properly treated as
having been reopened as a matter of administrative discretion.” Walker v. Barnhart, 258
F.Supp.2d 693, 699 (E.D. Mich. 2003) (citing King v. Chater, 90 F.3d 323, 325 (8th Cir.
1996)). Such reconsideration by an ALJ is referred to as a “de facto or constructive
reopening,” which is permissible only in specific circumstances. Id.; see also 20 C.F.R. §
404.988(a)&(b) (stating that a claim may be reopened for any reason up to one year after
a decision or may be reopened for good cause for up to four years.). “The mere
consideration of evidence from an earlier application,” however, “is not considered a
reopening of an earlier claim.” Walker, 258 F. Supp. 2d at 699 (citing King, 90 F.3d at
235). The key factor when considering whether an ALJ has constructively reopened a
previous claim is whether the ALJ was “seeking to determine whether [p]laintiff was
actually disabled during the relevant time period for that claim.” Id.
The Court finds that this objection is without merit, as the “mere consideration” of
Dr. Elliott’s opinion—which issued during the pendency of Plaintiff’s prior disability
claim—would not have automatically rendered the prior case constructively reopened. Id.
As outlined above, treating source opinions predating a claimant’s onset of disability may
nonetheless serve as relevant evidence when evaluated in combination with later
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evidence. DeBoard, 211 Fed. Appx. 411, 414 (6th Cir. 2006). In any event, Defendant’s
suggestion that the ALJ would have improperly utilized Dr. Elliott’s opinion to determine
whether Plaintiff was disabled during the time period for her previous claim is purely
speculative, and does not compel a conclusion that the ALJ rightfully disregarded Dr.
Elliott’s opinion as a treating physician. Thus, the objection will be OVERRULED.
Finally, Defendant argues that substantial evidence supports the ALJ’s
determination that Plaintiff did not have a severe mental impairment. (Doc. 35 at 6). As
correctly noted by Magistrate Judge Corker in his Report and Recommendation, however,
“the determination of [this] issue will have to wait until the ALJ explains the lack of weight
given to Dr. Elliott.” (Doc. 34 at 17). The Court finds no cause to disturb this finding here,
especially considering the contents of Dr. Elliott’s opinion. For this reason and those set
forth in Magistrate Judge Corker’s Report and Recommendation, this objection will be
OVERRULED.
IV.

CONCLUSION

Accordingly, for the reasons set forth above,
1.

The Court ACCEPTS and ADOPTS Magistrate Judge Corker’s findings of
fact, conclusions of law, and recommendations (Doc. 34) pursuant to 28
U.S.C. § 636(b)(1) and Rule 72(b);

2.

Defendant’s objections (Doc. 35) are OVERRULED;

3.

Plaintiff’s Motion for Summary Judgment (Doc. 31) is GRANTED;

4.

Defendant’s Motion for Summary Judgment (Doc. 32) is DENIED; and

5.

This case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g)
for further proceedings consistent with this Order.

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SO ORDERED this 13th day of September, 2017.
/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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