Kilgore v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER: The plaintiff's Motion for Judgment on the Pleadings [Doc. 15] is GRANTED, and the defendant Commissioner's Motion for Summary Judgment [Doc. 17] is respectfully DENIED. Signed by Magistrate Judge Clifton L Corker on 5/17/2017. (JCK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
MEMORANDUM AND ORDER
This matter is before the United States Magistrate Judge, with the consent of the
parties and an order of reference pursuant to 28 U.S.C. § 636 for final disposition.
Plaintiff’s application for Disability Insurance Benefits under the Social Security Act was
administratively denied following a hearing before an Administrative Law Judge
[“ALJ”]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 15], and
the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 17].
Standard of Review
The sole function of this Court in making this review is to determine whether the
findings of the Commissioner are supported by substantial evidence in the record.
McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir.
1988). “Substantial evidence” is defined as evidence that a reasonable mind might accept
as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389
(1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal
Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor
resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the
factual issues differently, the Commissioner’s decision must stand if supported by
substantial evidence. Listenbee v. Secretary of Health and Human Services, 846 F.2d
345, 349 (6th Cir. 1988). Yet, even 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.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
Sequential Evaluation Process
The applicable administrative regulations require the Commissioner to utilize a
five-step sequential evaluation process 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. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe
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?
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).
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).
Plaintiff’s Vocational Characteristics
The Vocational Expert [“VE”] who testified at plaintiff’s administrative hearing
defined plaintiff’s past relevant work as she performed it as an “Account Executive.”
Although the Dictionary of Occupational Titles [“DOT”] states that job, 164.167-010, as
sedentary, the VE stated that plaintiff performed it at a light level of exertion [Tr. 77].
That job required no skills transferable to other work. She had a high school education,
and was an “individual closely approaching advanced age” on her alleged disability onset
date of October 22, 2013 and at the time the ALJ rendered his hearing decision on June 2,
2015. The ALJ found that the plaintiff could perform her past relevant work at Step 4 of
the sequential evaluation process. Even if the process had gone to Step 5, and if she had
been capable of the full range of light work, Rule 202.14 of the Medical-Vocational
Guidelines, 20 CFR Part 404, Subpart P, Appendix 2 [the “Grid”] would have directed a
finding that she was not disabled. However, four months after the ALJ’s hearing decision
the plaintiff reached the age of 55 and became a person of “advanced age.” At that point,
with the same vocational characteristics, she would be disabled under Grid Rule 202.06.
Evidence in the Record
Plaintiff’s medical history is detailed in her brief as follows:
The Plaintiff has suffered from back pain for a number of years. She has
been cared for this back pain by Holston Medical Group, and as early as January
2008, it was noted that she was suffering from severe low back pain which was
made worse with driving (TR 808). At that time, it was opined by Dr. Andrew P.
Brockmyre that the Plaintiff could not sit for more than 30 minutes or stand
continuously for more than 30 minutes, must limit her driving, and limit her
working hours away from home to less than 25 hours per week (TR 809-810). In
February 2008, it was noted that she was doing ok during the day with the TENS
unit (TR 802). In April 2008, it was noted that she still had pain in her right groin
worse with prolonged sitting and also pain in her left hip which was worse if
sitting for more than just a few minutes (TR 789).
The Plaintiff was referred to Highlands Neurosurgery and on August 13,
2008, they diagnosed lumbar pain, right lower extremity discomfort with recent
EMG studies showing a chronic 81 radiculopathy, degenerative changes of the
lumbar spine seen on an MRI study from February 2007 with a paracentral and
left L4-L5 disc protrusion and annular tear at the L5-S1 region, and anxiety,
GERO, and tobacco abuse (TR 769). The Plaintiff underwent an MRI (TR 767768) and Dr. J. Travis Burt reported that the MRI revealed disc extrusions and
disc protrusions of the L4-L5 and L5-S1 that resulted in some impression upon
the exiting LS and 81 nerve roots (TR 765). The Plaintiff underwent a right L4-L5
and L5-S1 laminectomy diskectomy on September 15, 2008 and on October 24,
2008, Dr. Burt noted that there was an improvement in her right lower extremity
radicular discomfort but she still had lumbar pain consistent with her surgery (TR
753). On December 12, 2008, Dr. Burt noted that the Plaintiff was status post
right L4-5, L5-S1 laminectomy and diskectomy and that she had some residual
right leg pain which he felt might be due to chronic or at least some nerve root
injury. Her gait was slightly guarded and he advised the Plaintiff to continue with
her walking and stretching exercise program (TR 745).
The Plaintiff continued under the care of the Holston Medical Group. In
May 2009, she was diagnosed as suffering from hypothyroidism and fatigue (TR
709). On July 1, 2009, she was suffering from lumbar disc degenerative and
cervicalgia (TR 696). On July 30, 2009, she had an MRI of the thoracic spine
which showed what appeared to be a prominent disc protrusion or extrusion at
T8-9 (TR 683). An MRI of the cervical spine showed broad base central disc
bulging at CS-6 and C6-7 (TR 678).
The Plaintiff underwent a CT scan of the lumbar spine on September 25,
2009. This showed a normal L3-4 intervertebral disc but a probable grade 4
posterior annular tear at L4-5 with superimposed posterior disc protrusion,
resulting in moderate to severe spinal canal stenosis (TR 663). There was no
significant neural foraminal narrowing (TR 663-664) but the Plaintiff had L5-S1
spondylosis without significant spinal canal stenosis or neural impingement and it
did not appear to be worsened since the July 2009 examination (TR 664). Dr.
Morgan P. Lorio noted that the Plaintiff had a history notable for depression and a
diskogram was performed (TR 665). A large herniated disc was noted at L4-L5
On July 19, 2011, Dr. Burt diagnosed the Plaintiff as suffering from
diffuse pain without a significant radicular component involving the upper
extremities. She had a chronic complaint of right leg pain that was likely due to a
nerve root injury along the LS distribution. She also had a history of right L4-5 as
well as L5-S1 laminectomy and discectomy, fibromyalgia, diffuse pain, and
tobacco abuse. He did not feel she had a surgical legion (TR 554) and referred her
to pain management (TR 555).
The Plaintiff came under the care of Dr. Dennis Aguirre. He diagnosed the
Plaintiff as suffering from osteoarthrosis and allied disorders, multiple sites, and
degeneration of her cervical intervertebral disc. He also thought that she had
hypertrophic osteoarthritis, degenerative disc disease of the cervical spine,
posterior element syndrome, bilateral costochondritis, status post L4-5, L5-S1
laminectomy/discectomy, right S1 radiculopathy, breast augmentation, but she did
not fit the criteria for fibromyalgia, chronic obstructive pulmonary disease,
psychosocial dysfunction, depression, and hypothyroidism (TR 533).
The Plaintiff continued under the care of Holston Medical Group. In
January 2012, the Plaintiff was diagnosed as suffering from allergic rhinitis,
lumbar disk degeneration, nausea and abdominal pain (TR 517). The Plaintiff
underwent gall bladder surgery (TR 483). In February 2012, Dr. Brookmyre
hospitalized the Plaintiff because of confusion (TR 464). He diagnosed hypoxia,
altered mental status, fever, headache and a recent fall (TR 465). In April 2012,
the Plaintiff was diagnosed as suffering from shortness of breath, fatigue, nicotine
dependence and obstructive sleep apnea (TR 427). In June 2012, it was noted that
she had osteoporosis of the spine and osteopenia of the hips (TR 411).
The Plaintiff came under the care of Dr. Roger J. McSharry for shortness
of breath. He noted that spirometry showed moderate air flow limitation (TR
400). He diagnosed moderate chronic obstructive pulmonary lung disease, on
good treatment, reported sleep apnea, and chronic pain (TR 401).
In December 2012, Holston Medical Group noted the Plaintiff had allergic
rhinitis and lumbar disc degeneration (TR 375). In May 2015, it was noted that
she was suffering from intrinsic asthma (TR 349). It was noted that she had 82
active problems (TR 346-348).
The Plaintiff was also under the care of Ms. Lisa P. Sherfey , LCSW, a
social worker. On April 2, 2010, she noted the Plaintiff was anxious, depressed,
sad, and worried but she had no hallucinations or psychosis. She also had
interrupted sleep (TR 343). She diagnosed the Plaintiff as suffering from
adjustment disorder, rule out major depression and noted that she had thyroid
problems, chronic pain, and a history of back surgery. She also had grief, job
stress and health issues and her GAF was 50 (TR 344). On April 16, 2010, Ms.
Sherfey noted that the Plaintiff remained anxious and depressed and tearful. She
was very stressed about her job and Ms. Sherfey opined that the Plaintiff's
prognosis was guarded. At that time she diagnosed the Plaintiff as suffering from
major depression, moderate to severe, chronic back and neck pain and opined that
her GAF was 45 (TR 339). On May 14, 2010, she thought that the Plaintiff's
prognosis was good but she again diagnosed major depression as well as
generalized anxiety disorder and opined that her GAF was 55 (TR 338). Ms.
Sherfey continued to follow the Plaintiff and continued to diagnosed the Plaintiff
as suffering from major depression (TR 304-337). In April 2011, she had
increased depression and anxiety and thought that she was being targeted at her
work (TR 327). In May 2013, it was noted that the Plaintiff was no longer
working and that her pain was severe (TR 306).
The Plaintiff was evaluated on behalf of the Defendant by Dr. Chad R.
Sims, Ph.D., on August 5, 2013. He noted that her current psychiatric state was
depressed and he felt that she had evidence of a mild impairment in her social
relating in the context to her depressive symptoms but no evidence of impairment
in her ability to adapt to change. She appeared able to follow instructions, both
written and spoken and she had mild impairment in her short term memory and in
her ability to sustain concentration. She showed evidence of mild impairment in
her long-term and remote memory functioning. He diagnosed depressive disorder,
NOS, remote history of cocaine abuse/dependence, hypothyroidism, COPD,
asthma, osteoporosis of the spine, fibromyalgia, and degenerative disc disease and
he opined that her current GAF was 58-60 (TR 816).
The Plaintiff was evaluated on behalf of the Defendant by Dr. Jonathan
Wireman on September 5, 2013. He noted that her gait was antalgic and tandem
walking was mildly unstable. She resisted motion poorly in the upper extremities
and had 4/4 strength throughout including grips. He diagnosed COPD with a long
smoking history, low back pain with radicular description, with reported sensory
changes in the right ankle and foot, fibromyalgia, hypothyroidism, light patellar
tendon mass and neck pain. He opined that she could likely stand or walk for four
hours out of an eight hour shift with frequent breaks and sit for eight hours out of
an eight hour shift with reasonable breaks and frequent position changes. She
could likely lift five pounds frequently and 20 pounds occasionally (TR 820).
The Plaintiff underwent spigelian hernia repair on October 22, 2013. It
was noted that hernia was causing some pain (TR 843). She developed aspiration
pneumonia as a result (TR 839).
The Plaintiff was treated by Holston Medical Group in November 2013,
for swelling of her right knee. She was diagnosed as suffering from pre-patellar
bursitis of the right knee (TR 930). On November 22, 2013, it was noted that she
had a fall and also had numbness in her left hand (TR 920). In regards to her back
pain, her medicine was changed from Lidoderm 5% external patch to Lidocaine
5% external patch (TR 926). In June 2014, the Plaintiff was taking Xanax for
anxiety and morphine for pain (TR 969).
The Plaintiff came under the care of Dr. Ronald Hamdy in January 2015.
He diagnosed post-menopausal osteoporosis (TR 970).
The Plaintiff underwent an MRI of the lumbar spine on November 29,
2014. Itwas noted that there had been partial laminectomies on the right at L4-L5
and L5-S1 and the L4-L5 level showed a small central disc herniation of the
protrusion type with associated annular tear with only very mild ventral thecal sac
deformity. There was no central canal stenosis (TR 1009). An MRI of the
thoracic spine noted that the prior right sided T8-T9 disc protrusion was smaller
but there was a very small disc protrusion with minimal ventral cord deformity at
T5-T6 (TR 1010). An MRI of the cervical spine showed a further Joss of disc
space height at C5-C6 and there were very mild disc bulges without mass effect at
C4-C5, C5-C6 and C6-C7. The spinal cord and foramen magnum areas were
normal. There was some uncovertebral joint hypertrophy bilaterally causing
foraminal encroachment at C5-C6 which was probably mild although it was
slightly greater on the right. This showed further degenerative loss of disc space
height at C5-C6, mild bulges at C4-C7 without central stenosis and possible
spondylosis bilaterally at C5-C6 mild on the left and mild to moderate on the right
(TR 1011). An MRI of the hips were within normal limits (TR 1012).
The Plaintiff came under the care of Dr. David M. Pryputiniewicz at the
Blue Ridge Neuroscience Center on April 21, 2015. He noted that the Plaintiff
appeared to be in mild distress due to pain and examination of the hip and neck
revealed diffuse tenderness over the cervical region with diffuse tenderness over
the thoracic and lumbar region along with the right SI region and the piriformis
musculature on the right. There was no limitation of motion in the upper
extremities but that testing was limited due to pain.
There was hypesthesia in the right distal peroneal nerve distribution (TR
1027). Dr. Pryputiniewicz diagnosed lumbar degenerative disc disease, low back
pain and thoracic pain. Dr. Pryputiniewicz did not feel that any surgical
intervention would help and he felt there was no radiographic abnormality
warranting placement of activity restrictions (TR 1028).
The Plaintiff continued to be seen by Holston Medical Group.
noted that she had a lymph node in her neck (TR 1033). She was noted to have
numerous active problems including abdominal pain (TR 1033) anemia, anxiety,
bronchitis, back pain, chronic pain, FOPD, Edema, Fatigue, Fibromyalgia, (TR
1034) and in fact she had 113 active problems (TR 1033-1036). She had
tenderness of her left trapezius muscle and right trapezius muscle and bilateral
muscle spasm in her cervical spine and lumbar spine. Flexion was painful as was
extension and she was diagnosed as suffering from Jymphadenopathy, knee pain,
back pain, and chronic continuous use of opioids (TR 1039). On April 29, 2015, it
was noted that she had COPD was doing poorly on control and anxiety disorder
(TR 1058). On May 29, 2015, it was noted that she had 58 active problems (TR
[Doc. 16, pgs. 2-9].
On April 27, 2015, the ALJ held the plaintiff’s administrative hearing. After the
plaintiff testified, the ALJ took the testimony of the VE, Ms. Donna Bardsley. After she
identified the plaintiff’s past relevant work, she was asked to assume a person with the
plaintiff’s vocational characteristics who could do light work with occasional posturals;
no ropes, ladders, scaffolds; avoid concentrated exposure to hazards and fumes and other
irritants. When asked if there would be jobs, the VE stated that this person could perform
the plaintiff’s past relevant work. She also identified various other jobs in the state and
national economies which such a person could perform (Tr. 77-78). There is no dispute
that these would constitute a significant number of jobs under the applicable regulations.
On June 4, 2015, the ALJ issued his decision on the plaintiff’s claim. He made the
He found that the plaintiff was not working, and had not worked since
October 22, 2013, her alleged onset date (Tr. 50).
He found that she has severe physical impairments of fibromyalgia;
degeneration of the cervical, thoracic, and lumbar spine; osteoporosis of the lumbar
spine; status-post lumbar surgery; myalgias; and asthma. With respect to the plaintiff’s
claimed mental impairments, he noted that she was prescribed medication for this by her
primary care doctors, and that she was described by their records “as oriented with intact
insight and judgment.” (Tr. 50). He then discussed the findings of the consultative
examiner, Dr. Chad R. Sims, the clinical psychologist whose findings are set forth
hereinabove. Based upon Dr. Sims finding no more than mild difficulties with memory
and concentration, the ALJ found that plaintiff’s “medically determinable mental
impairments of Anxiety Disorder NOS, Depressive Disorder NOS, and Remote History
of Cocaine Abuse/Dependence, considered singly and in combination, do not cause more
than minimal limitation in the claimant’s ability to perform basic mental work activities
and are therefore nonsevere.” (Tr. 51).
The ALJ then described the four functional areas set out in the mental health
listing of impairments found at 20 CFR, Part 404, Subpart P, Appendix 1, the “paragraph
B criteria.” (Tr. 51). In the first area, activities of daily living, he found she had a mild
limitation. In that regard he noted she had told Dr. Sims she neglected self-care, had
limited engagement in chores, and loss of interest in activities aside from spending time
with her dogs. She reported crying spells on a weekly basis. On bad days she did
nothing but sedentary activities, and on good days did mostly cooking, cleaning and
talking to her friend on the phone (Tr. 51). In the second area of functioning, social
functioning, he found a mild limitation. He pointed to coherent responses, appropriate
behavior at medical appointments, and no history of personal problems with co-workers
or supervisors (Tr. 51).
With respect to the third area involving concentration,
persistence or pace, he also found a mild limitation, based upon Dr. Sims’ finding to that
effect during his exam (Tr. 51). Finally, in the fourth area, he found no episodes of
decompensation had occurred (Tr. 52).
Therefore, relying upon 20 CFR
§404.1521a(d)(1), he found that none of her mental impairments were severe. That
regulation provides that if a claimant’s degree of limitation is no more than mild in any of
first three areas of function described above, “we will generally conclude that your
impairment(s) is not severe, unless the evidence otherwise indicates that there is more
than a minimal limitation in your ability to do basic work activities….” Id.
The ALJ continued his discussion of the plaintiff’s asserted mental impairments
by further explaining the bases for his opinion. He stated that “[o]ther than prescription
medication from her primary care source, the record reflects no actual professional
mental health treatment for anxiety and depression.” (Tr. 52). He noted that “[n]o
treating source has indicated that the claimant has significant emotional problems.” Id.
He noted she had not required psychiatric hospitalization, and that while that she “may be
depressed and anxious, the evidence shows that she is able to think, communicate, and
act in her own interest.” Id. He pointed out that Dr. Sims’ personally observed the
plaintiff and that his findings of no more than mild impairments were “assigned great
He then stated that the State Agency psychologists who
examined plaintiff’s records, including the report of Dr. Sims, and concluded that the
plaintiff had moderate difficulties regarding activities of daily living and concentration,
were “an overestimate of the claimant’s mental limitations as they are clearly not
supported by credible evidence,” and were given little evidentiary weight. Id.
The ALJ found that the plaintiff had no impairment(s) which met or
equaled the effects of any impairment in the listing of impairments (Tr. 53).
He found that the plaintiff had the residual functional capacity [“RFC”] “to
perform light work…except that she is able to occasionally perform postural activities not
requiring climbing ladders, ropes, or scaffolds or concentrated exposure to hazards and
other respiratory irritants.” (Tr. 52). He reiterated that plaintiff had no non-exertional
impairments, such as a mental impairment. He then stated that the plaintiff’s description
of the effects of her symptoms on her abilities to perform work activities were not
entirely credible. He then discussed her physical medical history at great length (Tr. 5355). In this regard, he found she did not have any impairment the effects of which would
prevent her from performing activities within the context of the RFC finding (Tr. 55). He
further explained his reasons, including radiographic studies, physical exams showing
normal ranges of motion, and conservative treatment (Tr. 56).
He stated the State
Agency physicians supported this finding. He found that Dr. Wireman’s restriction on
stand/walking to up to four hours was entitled to little evidentiary weight because it was
“an overestimate of the severity of the claimant’s limitation based on his own objective
findings and the one time evaluation of the claimant” to which he gave little weight (Tr.
He then found the plaintiff could return to her past relevant work based
upon Ms. Bardsley’s testimony. Alternatively, he found the plaintiff could perform the
jobs identified by Ms. Bardsley at the light level of exertion. Accordingly, he found that
the plaintiff was not disabled (Tr. 57-58).
Plaintiff’s Assertions of Error and Analysis
Plaintiff first states that the ALJ erred in finding that the plaintiff could return to
her past relevant work with respect to both her alleged mental and physical impairments.
Her second assignment of error is that the ALJ improperly found that the plaintiff was not
With respect to the ALJ’s finding that she did not have a severe mental
impairment, plaintiff points to the fact that both State Agency psychologists who
examined the plaintiff’s medical records opined that she had severe impairments with
respect to both her anxiety disorder and her affective disorder (Tr. 85 and 104). Both also
found that plaintiff had moderate restrictions in activities of daily living and moderate
difficulties in maintaining concentration, persistence or pace. (Tr. 86 and 109-110).
Likewise, both psychologists relied upon the lengthy treatment history by LCSW Lisa P.
Sherfey (Tr. 83 and 102).
More importantly, both opined that Dr. Sims’ mental
assessment in August 2013 was “felt not restrictive enough for totality of evidence and
given little weight…” (Tr. 86 and 105). As stated above, the ALJ discounted their
opinions because they “are clearly not supported by credible evidence.” (Tr. 52).
The bar for a plaintiff to cross in proving that he or she has a severe impairment is
quite low. The Sixth Circuit, from time immemorial, has held that “the step two severity
regulation...has been construed as a de minimis hurdle in the disability determination
process...Under the prevailing de minimis view, an impairment can be considered not
severe only if it is a slight abnormality that minimally affects work ability regardless of
age, education, and experience. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988)
(citations omitted). The de minimis standard exists to allow “the threshold dismissal of
claims obviously lacking medical merit.” Id. “The purpose of the second step of the
sequential analysis is to enable the Commissioner to screen out ‘totally groundless
claims.’” Griffeth v. Commissioner of Social Security, 217 F. App’x 425, 428 (6th Cir.
2007)(quoting Farris v. Sec’y of HHS, 773 F.2d 85, 89 (6th Cir. 1985)). Having a severe
impairment and being disabled are quite different concepts. Thus statements that a
claimant’s conservative treatment or daily activities do not suggest that the claimant
could engage in at least some work activity which are of vital importance in determining
the RFC have very little meaning in a Step Two analysis of whether an impairment is
severe or non-severe.
In the present case, the ALJ has found that the plaintiff has not shown a severe
mental impairment, primarily because “[o]ther than prescription medication from her
primary care source, the record reflects no actual professional mental health treatment for
anxiety/depression…,” and “no treating source has indicated that the claimant has
significant emotional problems.” (Tr. 52). The fact that a treating medical doctor of
whatever specialty is prescribing medication for depression and anxiety would seem to
the Court to be both “professional treatment,” as well as an indication that the prescribing
doctor feels that the plaintiff has emotional problems sufficiently significant to merit
prescribing the medication. Also, the ALJ, and the Commissioner, are completely silent
with respect to the treatment given to the plaintiff by Lisa Sherfey, the LCSW with whom
the plaintiff had 36 visits between April 2010 and May 2013 (Tr. 303-344).
Ms. Sherfey is a Licensed Clinical Social Worker [“LCSW”]. As such, she is not
an “acceptable medical source” under 20 CFR § 404.1513(a). That distinction is limited
to physicians, licensed or certified psychologists, optometrists (with respect to
measurement of visual acuity and visual fields only), podiatrists (in certain states), and
speech pathologists (for establishing speech impediments only). However, paragraph (d)
of this regulation provides that “other sources” may be used, including “medical sources
not listed in paragraph (a).”
In Social Security Ruling [“SSR”] 06-03p, 2006 WL
2329939, the Commissioner set forth policies regarding the consideration of the “other
sources” referenced in the CFR section above. The SSR, in describing “other sources,”
included “licensed clinical social workers” in its definition of “medical sources who are
not ‘acceptable medical sources.’” Id. at *2. The ruling then stated:
With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not “acceptable medical
sources,” such as …licensed clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation functions handled primarily by
physicians and psychologists. Opinions from these medical sources who are not
technically deemed “acceptable medical sources,” under our rules, are important
and should be evaluated on key issues such as impairment severity and functional
effects, along with the other evidence in the file.
Id. at *3 (emphasis added).
The SSR went on to discuss the “explanation of consideration given to opinions
from ‘other sources.’” “Since there is a requirement to consider all relevant evidence in
an individual’s case record, the case record should reflect the consideration of opinions
from medical sources who are not ‘acceptable medical sources’…who have seen the
claimant in their professional capacity.” Id. at *6. It went on to say that “the adjudicator
generally should explain the weight given to opinions from these ‘other sources,’ or
otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning, when
such opinions may have an impact on the outcome of the case.” Id.
After the implementation of this SSR, the Sixth Circuit decided the case of Cruse
v. Commissioner of Soc. Sec., 502 F.3d 532 (6th Cir. 2007). In that case, the ALJ
actually discussed the findings of plaintiff’s nurse practitioner, and discounted them
saying that the nurse was not a doctor. The Court stated that “following SSR 06-03p, the
ALJ should have discussed the factors relating to his treatment of [the nurse
practitioner’s] assessment.” Id. at 541.
Likewise, in Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011), the Sixth Circuit
remanded the case, in part, because “the ALJ fail[ed] to mention Ms. Dailey, Cole’s
treating counselor, in the analysis of Cole’s diagnosis and RFC and [gave] no reasons for
not crediting her opinions.” Id. at 939. The Court went on to say that the counselor “is
an ‘other source,’… who is entitled to consideration due to her expertise and long-term
relationship with Cole.” Id.
In this case, based on Cruse and Cole, supra, and the language of SSR 06-03p, the
Court finds that the ALJ erred by not at least discussing the treatment notes from Ms.
Sherfy. In fact, the Court is of the opinion that the hearing decision should have stated a
basis for rejecting her opinion that the plaintiff suffers from major depression that was
causing a lack of sleep, loss of energy and paranoia. However, even if an explanation for
giving them little weight was not required, as some cases from other districts such as
Southward v. Commissioner of Soc. Sec., 2012 WL 3887439 (E.D. Mich. 2012), have
suggested, it is indisputable that the SSR and the Sixth Circuit cases discussed above
require consideration of her treatment of the plaintiff. In the present case, with absolutely
no mention of that treatment, the Court has no assurance that Ms. Sherfy’s records were
even considered. Also, as stated above, her records are especially vital to the issue of
whether plaintiff has met the de minimis hurdle of showing a severe mental impairment.
The State Agency psychologists, in no small part, based their opinion that she had
moderate mental impairments in two of the four critical areas of functioning on the
observations of Ms. Sherfy, causing them to both concluded that Dr. Sims’ opinion of
only mild difficulties was not restrictive enough, and that the plaintiff does in fact have a
severe mental impairment.
Of course, the argument could be made that the ALJ rejected Ms. Sherfy
vicariously by finding that the State Agency psychologists were “clearly not supported by
credible evidence.” An explanation of why her treatment notes, along with the fact her
treating doctor prescribed medication for her depression, do not constitute “credible
evidence” is necessary. In this case, this complete omission of the fact that Ms. Sherfy’s
treatment of plaintiff even existed prevents the Commissioner’s finding in this regard
from being substantially justified.
Given that the case must be remanded for clearer evaluation of these issues, the
Court will defer discussion of the plaintiff’s physical condition and her credibility. The
plaintiff’s Motion for Judgment on the Pleadings [Doc. 15] is GRANTED, and the
defendant Commissioner’s Motion for Summary Judgment [Doc. 17] is respectfully
s/ Clifton L. Corker
United States Magistrate Judge
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