Frisell v. Social Security Administration, Commissioner of

Filing 20

MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge C Clifford Shirley, Jr on 7/10/17. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JAMIE MARIE FRISELL,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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No. 3:16-CV-131-CCS

MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the
Federal Rules of Civil Procedure, and the consent of the parties [Doc. 13]. Now before the Court
is the Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 15 & 16]
and the Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 17 &
18].

Jamie Marie Frisell (“the Plaintiff”) seeks judicial review of the decision of the

Administrative Law Judge (“the ALJ”), the final decision of the Defendant Nancy A. Berryhill,
Acting Commissioner of Social Security (“the Commissioner”). For the reasons that follow, the
Court will GRANT the Plaintiff’s motion and DENY the Commissioner’s motion.
I.

PROCEDURAL HISTORY
On September 8, 2010, the Plaintiff filed an application for disability insurance benefits

(“DIB”), claiming a period of disability which began August 10, 2010. [Tr. 207-08]. After her
application was denied initially and upon reconsideration, the Plaintiff requested a hearing. [Tr.

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During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner
Carolyn W. Colvin. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted as the Defendant in this case.

114]. On March 5, 2012, the ALJ found that the Plaintiff was not disabled. [Tr. 87-100]. The
Appeals Council granted the Plaintiff’s request for review [Tr. 101-04] and a second hearing was
conducted on May 27, 2014 [Tr. 44-84]. On August 6, 2014, the ALJ found that the Plaintiff was
not disabled. [Tr. 12-26]. The Appeals Council denied the Plaintiff’s request for review [Tr. 13]; thus, the ALJ’s decision became the final decision of the Commissioner.
Having exhausted her administrative remedies, the Plaintiff filed a Complaint with this
Court on March 18, 2016, seeking judicial review of the Commissioner’s final decision under
Section 405(g) of the Social Security Act with regard to the Plaintiff’s DIB application. [Doc. 1].
The parties have filed competing dispositive motions, and this matter is now ripe for adjudication.
II.

STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
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The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the
Court will 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) (citation omitted).
On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.
Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
III.

ANALYSIS
This case involves an application for DIB. An individual qualifies for DIB if he or she: (1)

is insured for DIB; (2) has not reached the age of retirement; (3) has filed an application for DIB;
and (4) is disabled. 42 U.S.C. § 423(a)(1).
“Disability” is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve months.”
§ 423(d)(1)(A); 20 C.F.R. § 404.1505(a). A claimant will only be considered disabled if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
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impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
The claimant bears the burden of proof at the first four steps. Id. The burden shifts to the
Commissioner at step five. Id. At the fifth step, the Commissioner must prove that there is work
available in the national economy that the claimant could perform. Her v. Comm’r of Soc. Sec.,
203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).
On appeal, the Plaintiff alleges that the ALJ failed to properly consider the opinion of Bruce
Young, Psy.D. [Doc. 16 at 7]. The Plaintiff submits that Dr. Young was the Plaintiff’s treating
psychologist, and as a treating source, the ALJ was required to weigh his opinion pursuant to 20
C.F.R. § 404.1527(c)(2), commonly referred to as the Treating Physician Rule. [Id. at 8-16]. The
Plaintiff contends that not only did the ALJ fail to weigh the opinion under section 404.1527(c)(2),
but the ALJ did not discuss the opinion or state what weight, if any, the opinion deserved. [Id.].
The Commissioner counters that Dr. Young was not a treating source because he only
examined the Plaintiff on one occasion. [Doc. 18 at 6]. Moreover, the Commissioner maintains
that the regulations instruct an ALJ to “weigh” medical opinions, but do not require that a
quantifiable weight be assigned. [Id. at 8]. The Commissioner concedes that the ALJ did not
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identify Dr. Young by name in the disability determination but argues that the ALJ discussed the
medical records that contained Dr. Young’s opinion and the non-exertional limitations assigned
by the ALJ in the residual functional capacity (“RFC”) determination are consistent with the
“moderate” restrictions assessed by Dr. Young. [Id.].
The Court will first determine the classification of Dr. Young as a medical source and then
determine whether the ALJ properly considered the opinion.
A.

Whether Dr. Young Was A Treating Source

A medical opinion, regardless of its source, must be evaluated. 20 C.F.R. § 404.1527(c).
However, the level of deference a medical opinion enjoys depends on the classification of the
source. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (“The source of
the opinion therefore dictates the process by which the Commissioner accords it weight.”). The
regulations identify three types of medical sources:

(1) treating sources, (2) nontreating,

examining sources, and (3) nontreating, nonexamining sources. 20 C.F.R. § 404.1502. The parties
disagree whether Dr. Young was a treating source or a nontreating, examining source.
A treating source is an acceptable medical source—generally, a physician or
psychologist—who provides, or has provided, medical treatment or evaluation on an ongoing
basis. Id. A nontreating, examining source is likewise an acceptable medical source and has
examined the claimant but does not have an ongoing treating relationship. Id. To qualify as a
treating source, the claimant must be seen by “the source with a frequency consistent with accepted
medical practice for the type of treatment and/or evaluation required for your medical
condition(s).” Id. Even if a claimant has been seen infrequently, a source may nonetheless be
considered a “treating source if the nature and frequency of the treatment or evaluation is typical
for your condition(s).” Id.
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Here, the Court disagrees with the Plaintiff that Dr. Young was a treating source. The
record demonstrates that Dr. Young saw the Plaintiff on only one occasion. Specifically, Dr.
Young examined the Plaintiff on August 2, 2010, when the Plaintiff presented to Helen Ross
McNabb Center to establish mental health treatment. [Tr. 398-405]. Dr. Young performed an
intake assessment and mental status exam, and the Plaintiff was diagnosed with intermittent
explosive disorder, bipolar disorder, not otherwise specified, generalized anxiety disorder, and rule
out cannabis dependency. [Tr. 399-402]. A Functional Assessment was also completed, wherein
Dr. Young opined that the Plaintiff experienced “moderate” limitations in activities of daily living,
interpersonal functioning, concentration, task performance, and pace, and adaption to change. [Tr.
403-05]. Although the Plaintiff continued to be seen at Helen Ross McNabb Center until February
2012, the record fails to demonstrate that the Plaintiff was examined or treated by Dr. Young
beyond the August 2, 2012 evaluation. Furthermore, the Plaintiff has not directed the Court to any
evidence of an ongoing treating relationship with Dr. Young.
Accordingly, the Court finds that Dr. Young was a nontreating, examining source. See
Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (finding a doctor who “examined
Smith, completed a medical report, prescribed and refilled back pain medication, and denied
additional medication when Smith returned seeking more” was not a treating source)
B.

Whether the ALJ Properly Considered Dr. Young’s Opinion

Opinions rendered by one-time examiners are not entitled to any special degree of
deference. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994); see Gayheart, 710 F.3d at 376
(observing that the opinions from nontreating sources are never assessed for controlling weight
and the good reason requirement enumerated in 20 C.F.R. 404.1527(c)(2) only applies “to a
treating-source opinion”). “The Commissioner instead weighs these opinions based on the
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examining relationship (or lack thereof), specialization, consistency, and supportability.”
Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)). “Other factors ‘which tend to support
or contradict the opinion’ may be considered in assessing any type of medical opinion.” Id.
(quoting 20 C.F.R. § 404.1527(c)(6)). “Unless an ALJ assigns controlling weight to a treating
physician’s opinion, the ALJ must consider ‘all’ of the above factors ‘in deciding the weight [the
ALJ] give[s] to any medical opinion.’” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 836-37 (6th
Cir. 2016) (quoting 20 C.F.R. § 404.1527(c)).
As mentioned above, Dr. Young completed a Functional Assessment wherein he opined
that the Plaintiff experienced “moderate” limitations in activities of daily living, interpersonal
functioning, concentration, task performance, and pace, and adaption to change. [Tr. 403-04]. In
functional terms, this meant the Plaintiff would have: (1) “regular or frequent problems with
performing daily routine activities and is unable to perform up to acceptable standards without
frequent assistance,” (2) “regular or frequent difficulty with concentration and can complete simple
tasks within timeframes and/but needs prompting and help,” and (3) “regular or frequent difficulty
in accepting and adjusting to change; adaption will require some intervention.” [Tr. 403-04]. Dr.
Young explained that the Plaintiff experienced severe emotional fluctuations and limited family
support, giving rise to the foregoing limitations. [Id.]. Dr. Young also assigned a global
assessment of functioning score (“GAF”) of 44 [Tr. 405], which indicated serious symptoms or
serious impairment in social or occupation functioning, Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 34, 4th ed. (revised) 2000.
The Plaintiff argues that even if Dr. Young was a nontreating source, the ALJ was still
required to assess Dr. Young’s opinion using the factors set forth in 20 C.F.R. § 404.1527(c).
[Doc. 19 at 2]. The Plaintiff submits that the ALJ’s failure to weigh the opinion leaves subsequent
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reviewers guessing why the ALJ instead deferred to the opinion of a nontreating, nonexamining
state agency psychologist. [Id.]. The Commissioner argues that “[a]lthough the ALJ did not
identify Dr. Young by name in the decision, the ALJ cited and discussed the record evidence at 2F
– where Dr. Young’s opinion is located.” [Doc. 18 at 8]. The Commissioner further submits that
the ALJ assigned “moderate” restrictions at step three of the sequential evaluation that are
consistent with Dr. Young’s “moderate” limitations. [Id.].
As an initial matter, the Court observes that the ALJ’s finding at step three that the Plaintiff
has moderate limitations in the areas of daily living activities, social functioning, and
concentration, persistence, or pace was with regard to whether the Plaintiff satisfied the “paragraph
B” criteria of Listing 12.04 or 12.06. [Tr. 18]; see 20 C.F.R. § 404.1520(a)(4)(iii) (explaining that
a claimant may be found disabled at step three if an impairment meets, or medically equals, one
of the listings in the Listing of Impairments). An ALJ’s discussion of the “paragraph B” criteria
is not an RFC determination. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00.A. Therefore, an
assessment of moderate limitations at step three does not mean that the Plaintiff will have
corresponding limitations with regard to her RFC. 2 See Bailey v. Astrue, No. CIV.A. 10-227JBC, 2011 WL 3880503, at *2 (E.D. Ky. Aug. 31, 2011) (“The RFC assessment takes into account
all of the relevant evidence in the case record, . . . and the ALJ was not required to specifically
adopt ‘paragraph B’ findings in his development of a complete and accurate assessment of Bailey’s
mental impairment.”) (citing Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *4 (July 2, 1996)).

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Regardless, the ALJ’s discussion at step three does not mention or discuss Dr. Young’s
opinion. [Tr. 18]. The ALJ’s citation to Exhibit 2F, which contains Dr. Young’s opinion as well
as other treatment notes from Helen Ross McNabb Center, was in reference to the ALJ’s discussion
of the GAF scores of record, not Dr. Young’s Functional Assessment or the limitations assessed
therein. [See id.].
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Instead, a claimant’s RFC is formulated at steps four and five, which require a more
detailed assessment of the functions discussed under the “paragraphs B” criteria. Soc. Sec. Rul.
96-8p, 1996 WL 374184 at *4. “The RFC assessment must always consider and address medical
source opinions. If the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” Id. at *7.
The Court finds that the ALJ’s decision does not address, either explicitly or implicitly, the
opinion of Dr. Young. Nowhere in the decision is Dr. Young mentioned by name, his Functional
Assessment discussed, or his moderate limitations addressed. As a result, the ALJ failed to assess
the opinion pursuant to the factors set forth in 20 C.F.R. § 404.1527(c). Although Dr. Young’s
opinion was not subject to the “good reason” requirement, “it must be apparent from a fair reading
of the [ALJ’s] decision that the medical opinions of nontreating sources were at least considered.”
Borman v. Comm’r of Soc. Sec., No. 2:12-CV-509, 2013 WL 3394392, at *4 (S.D. Ohio July 8,
2013), adopted by, No. 2:12-CV-509, 2013 WL 3935028 (S.D. Ohio July 30, 2013).
The Court rejects the Commissioner’s contention that the ALJ’s citation to Exhibit 2F,
where Dr. Young’s opinion can be found, is sufficient to demonstrate that the opinion was
considered as required by the regulations. First, the exhibit includes treatment notes from other
medical sources in addition to the evaluation and Functional Assessment completed by Dr. Young.
[Tr. 383-405]. Second, the ALJ collectively referenced Exhibit 2F and five other exhibits in the
RFC portion of the decision for the general assertion that “to the extent they are consistent with
the [Plaintiff’s] actual activity level,” these treatment records supported the opinion of the state
agency psychologist. However, the limitations opined by the state agency psychologist—that the
Plaintiff could perform simple and multistep tasks, maintain attention and concentration for
periods of at least two hours, interact appropriately with coworkers, supervisors, and the general
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public, and adapt to routine workplace changes as needed [Tr. 439]—are less restrictive than Dr.
Young’s limitations, including that the Plaintiff would have regular to frequent difficulty:
performing daily activities up to an acceptable standard, concentrating and completing tasks
without prompting and help, and adjusting to change [Tr. 403-04]. The ALJ’s RFC determination
includes the limitations opined by the state agency physiologist [Tr. 19], and therefore does not
represent the “moderate” restrictions imposed by Dr. Young as argued by the Commissioner [Doc.
18 at 8-9]. Agency rules require the ALJ to explain why Dr. Young’s competing opinion was not
adopted. See Soc. Sec. Rul. 96-8p, 1996 WL 374184 at *7.
Moreover, the opinions rendered by Dr. Young and the state agency psychologist are the
only medical opinions of record. “Unless a treating source’s opinion is given controlling weight,”
the ALJ “must explain in the decision the weight given to . . . any opinions from treating sources,
nontreating sources, and other nonexamining sources.” 20 C.F.R. § 404.1527(e)(2)(ii). In
addition, more weight is generally given to an examining source than a source who has not
examined the claimant. 3 § 404.1527(c)(1). The ALJ’s failure to consider Dr. Young’s opinion,
therefore, cannot be considered harmless. See Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647,
651 (6th Cir. 2009) (“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.’”) (quoting

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To be clear, the Court is not suggesting that Dr. Young’s opinion should have been
adopted or was entitled to great weight. “In appropriate circumstances, opinions from State agency
medical and psychological consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining sources.” Soc. Sec. Rul. 96–
6p, 1996 WL 374180, at *3 (July 2, 1996). However, without any evidence that the ALJ
considered or weighed Dr. Young’s opinion, that Court is unable to conclude that substantial
evidence supports the ALJ’s RFC determination.
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Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.2007)).
Accordingly, the Court will remand the case for the ALJ to reconsider Dr. Young’s opinion
consistent with 20 C.F.R. § 404.1527(c).
VI.

CONCLUSION
Based on the foregoing, the Plaintiff’s Motion for Summary Judgment [Doc. 15] is

GRANTED, and the Defendant’s Motion for Summary Judgment [Doc. 17] is DENIED. The
decision of the Commissioner is REMANDED for further proceedings consistent with this
Memorandum Opinion.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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