Gursky v. Colvin
Filing
15
ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING CASE PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g). Signed by Magistrate Judge Tu M. Pham on 12/19/2017. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MARY GURSKY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
No. 16-cv-2654-TMP
ORDER REMANDING CASE PURSUANT TO 42 U.S.C. § 405(g)
Before the court is plaintiff Mary Gursky’s appeal from a
final
decision
(“Commissioner”)
of
the
Commissioner
denying
her
of
application
Security1
Social
for
disability
insurance benefits under Title II of the Social Security Act
(“Act”), 42 U.S.C. §§ 401 et seq.
parties
consented
to
the
On October 25, 2016, the
jurisdiction
of
the
magistrate judge pursuant to 28 U.S.C. § 636(c).
For
the
reasons
set
forth
below,
the
United
States
(ECF No. 10.)
decision
of
the
Commissioner is reversed and the action is remanded pursuant to
sentence four of 42 U.S.C. § 405(g).
I.
1
PROCEDURAL HISTORY
Carolyn W. Colvin was the Acting Commissioner of Social Security
at the time this case was filed. Therefore, she is named in the
in the caption to this case. As of the date of this order, the
Acting Commissioner of Social Security is Nancy A. Berryhill.
On March 7, 2013, Gursky applied for disability benefits
under
Title
disability
II
of
the
beginning
on
Act.
(R.
March
at
31,
193.)
2006,
Gursky
due
arthritis, fibromyalgia, depression and pain.
to
The
Security
Administration
(R. at 23,
(“SSA”)
denied
Gursky’s application initially and upon reconsideration.
(R. at
113, 118.)
Social
rheumatoid
(R. at 193, 206.)
Gursky’s last date insured was December 31, 2013.
220.)
alleged
At Gursky’s request, a hearing was held before an
Administrative Law Judge (“ALJ”) on April 27, 2015.
122.)
(R. at 38,
On August 13, 2015, the ALJ issued a decision denying
Gursky’s request for benefits after finding that Gursky was not
under a disability because she retained the residual functional
capacity
(“RFC”)
to
perform
jobs
that
exist
in
significant
numbers in the national economy.
(R. at 25–31.)
On June 21,
2016,
denied
request
the
review.
SSA’s
Appeals
(R. at 1.)
Council
Gursky’s
for
Therefore, the ALJ’s decision became the
final decision for the Commissioner.
(Id.)
Subsequently, on
August 11, 2016, Gursky filed the instant action.
(ECF No. 1.)
Gursky argues that (1) the court should remand the case so that
the ALJ may review new evidence, (2) the ALJ improperly weighed
the opinions of Gursky’s treating physician and therapists, and
(3) the record lacks substantial evidence to support the ALJ’s
finding that Gursky’s testimony was not entirely credible.
No. 12 at 12 to 20.)
-2-
(ECF
II.
A.
CONCLUSIONS OF LAW
Standard of Review
Under 42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which she or he was a party.
“The court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding
the cause for a rehearing.”
review
there
of
is
whether
the
Commissioner’s
substantial
the
42 U.S.C. § 405(g).
evidence
Commissioner
making the decision.
decision
used
is
limited
to
support
the
the
proper
legal
Judicial
to
whether
decision
criteria
and
in
Id.; Burton v. Comm'r of Soc. Sec., No.
16-4190, 2017 WL 2781570, at *2 (6th Cir. June 27, 2017); Cole
v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Substantial
evidence is more than a scintilla of evidence but less than a
preponderance, and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Kirk v.
Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In
determining
whether
substantial
evidence
exists,
the
reviewing court must examine the evidence in the record as a
whole and “must ‘take into account whatever in the record fairly
-3-
detracts from its weight.’”
Abbott v. Sullivan, 905 F.2d 918,
923 (6th Cir. 1990) (quoting Garner v. Heckler, 745 F.2d 383,
388
(6th
support
Cir.
the
1984)).
If
Commissioner’s
affirm
that
decision
record
could
support
and
a
substantial
decision,
“may
not
decision
evidence
however,
even
the
is
the
to
court
must
whether
inquire
other
found
the
way.”
Barker
v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v.
Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
1989)).
resolve
Similarly, the court may “not try the case de novo,
conflicts
credibility.”
in
the
evidence
or
decide
questions
of
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007)).
The Commissioner, not the court, is charged with
the duty to weigh the evidence and to resolve material conflicts
in the testimony.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th
Cir. 1990); Prater v. Comm'r of Soc. Sec., No. 114CV01221STATMP,
2017 WL 2929479, at *1 (W.D. Tenn. July 10, 2017).
B.
The Five-Step Analysis
The Act defines disability as 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
-4-
not
less
than
12
months.”
42 U.S.C. § 423(d)(1).
Additionally, section 423(d)(2) of the
Act states that:
An individual shall be determined to be under a
disability only 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.
For purposes of the preceding
sentence (with respect to any individual), “work which
exists in the national economy” means work which
exists in significant numbers either in the region
where such individual lives or in several regions of
the country.
Under
the
Act,
the
claimant
bears
the
establishing an entitlement to benefits.
ultimate
burden
of
Oliver v. Comm’r of
Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011).
The initial
burden is on the claimants to prove they have a disability as
defined by the Act.
Siebert v. Comm’r of Soc. Sec., 105 F.
App’x 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at
529); see also Born v. Sec’y of Health & Human Servs., 923 F.2d
1168, 1173 (6th Cir. 1990).
If the claimant is able to do so,
the burden then shifts to the Commissioner to demonstrate the
existence of available employment compatible with the claimant’s
disability and background.
Born, 923 F.2d at 1173; see also
-5-
Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 559 (6th Cir.
2014).
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
Regulations.
See 20 C.F.R. § 404.1520.
First, the claimant
must not be engaged in substantial gainful activity.
C.F.R. § 404.1520(b).
claimant
suffers
Second, a finding must be made that the
from
404.1520(a)(4)(ii).
See 20
a
In
severe
the
impairment.
third
step,
20
the
ALJ
C.F.R.
§
determines
whether the impairment meets or equals the severity criteria set
forth in the Listing of Impairments contained in the Social
Security Regulations.
404.1526.
See 20 C.F.R. §§ 404.1520(d), 404.1525,
If the impairment satisfies the criteria for a listed
impairment, the claimant is considered to be disabled.
On the
other hand, if the claimant’s impairment does not meet or equal
a listed impairment, the ALJ must undertake the fourth step in
the analysis and determine whether the claimant has the RFC to
return
to
any
past
relevant
404.1520(a)(4)(iv), 404.1520(e).
work.
See
20
C.F.R.
§§
If the ALJ determines that the
claimant can return to past relevant work, then a finding of not
disabled
must
be
entered.
Id.
But
if
the
ALJ
finds
the
claimant unable to perform past relevant work, then at the fifth
step the ALJ must determine whether the claimant can perform
other
work
existing
in
significant
-6-
numbers
in
the
national
economy.
See
20
C.F.R.
§§
404.1520(a)(4)(v),
404.1520(g).
Further review is not necessary if it is determined that an
individual
analysis.
C.
is
not
disabled
at
any
point
in
this
sequential
20 C.F.R. § 404.1520(a)(4).
Whether to Remand for Review Based on New Evidence
Gursky requests that the court remand her case so the ALJ
may consider the additional evidence of a new medical assessment
from Gursky’s treating source, Dr. Judith Lee-Sigler.2
12 at 14 to 16.)
ALJ
with
Sigler.
an
Prior to her hearing, Gursky had provided the
incomplete
medical
(R. at 788–92.)
decision,
Dr.
(ECF No.
assessment
form
by
Dr.
Lee-
On October 27, 2015, after the ALJ’s
Lee-Sigler
gave
Gursky
a
complete
medical
assessment form in which she had checked boxes to indicate that
Gursky suffers from severe physical and mental limitations. (ECF
No. 12-1.)
Courts may remand a case to an ALJ for review of additional
evidence “only upon a showing that there is new evidence which
is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding
. . . .”
indicates,
claimant.
42 U.S.C. § 405(g).
this
places
the
As the language of the statute
burden
of
production
upon
the
See Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 839
2
The parties both describe Dr. Lee-Sigler as a treating source.
(ECF No. 12 at 21; ECF No. 13 at 4.)
-7-
(6th Cir. 2016) (citing 42 U.S.C. § 405(g); Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001)).
Regarding the first requirement, in order to be new, the
evidence
must
not
have
existed
or
been
“available
to
claimant at the time of the administrative proceeding.”
the
Deloge
v. Comm'r of Soc. Sec. Admin., 540 F. App'x 517, 519 (6th Cir.
2013)
(citing
Foster,
279
F.3d
at
357).
The
new
medical
assessment was not available to the ALJ at the time of the
disability determination.
However, the “insurmountable hurdle”
for Gursky is that this medical assessment was available before
June 21, 2016, which is when the SSA Appeal’s Counsel denied
Gursky’s request for review.
Lee v. Comm'r of Soc. Sec., 529 F.
App'x 706, 717 (6th Cir. 2013) (refusing to remand a Social
Security
Appeal
to
the
ALJ
for
review
of
evidence
that
the
claimant had possessed during the SSA appellate review but had
not submitted to the Appeal’s Counsel).
But see Templeton v.
Comm'r of Soc. Sec., 215 F. App'x 458, 463–64 (6th Cir. 2007)
(noting
that
“[e]vidence
is
‘new’
only
if
it
was
not
in
existence or was not available prior to the ALJ's decision”).
The medical assessment was available to Gursky during the course
of her administrative proceeding; ergo, it is not new evidence.
As for the second requirement, “evidence is ‘material’ only
if there is ‘a reasonable probability that the [Commissioner]
would have reached a different disposition of the disability
-8-
claim if presented with the new evidence.’” Deloge, 540 F. App’x
at 519 (alteration in original) (quoting Sizemore v. Sec'y of
Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988)).
This
evidence is not material because it is not connected to the
relevant time period — March 31, 2006, Gursky’s disability onset
date, to December 31, 2013, the last date Gursky was insured.
See McCraney v. Comm'r of Soc. Sec., 68 F. App'x 570, 572 (6th
Cir. 2003) (noting that “the district court properly found that
the
proposed
evidence
was
not
material
because
it
involves
mental evaluations that were obtained long after the ALJ denied
[the
claimant’s]
current
application”
(citing
Oliver
v.
Secretary of Health and Human Servs., 804 F.2d 964, 966 (6th
Cir. 1986))).
Gursky attempts to relate the evidence back to when she was
insured by pointing out that
Dr. Lee-Sigler had treated
her
before December 31, 2013, and that Dr. Lee-Sigler indicated in
the new form that Gursky’s limitations existed before December
31, 2013.
avail.
2013.
(ECF No. 12 at 15 to 16.)
These arguments are of no
Dr. Lee-Sigler did not treat Gursky before December 31,
It was a coworker of Dr. Lee-Sigler’s, Dr. David Brough,
who treated Gursky prior to December 31, 2013.
788.)
Dr.
Lee-Sigler
October 1, 2014.
based
her
did
not
start
(R. at 761–62, 788.)
assessment
upon
observations
-9-
treating
(R. at 764,
Gursky
until
Thus, she must have
that
she
made
after
Gursky’s
insurance
ended,
rendering
it
“of
little
probative
value.”
See Strong v. Soc. Sec. Admin., 88 F. App'x 841, 845
(6th Cir. 2004)(citations omitted); Jones v. Berryhill, No. 131134,
2017
WL
1187937,
at
*8
(W.D.
Tenn.
Mar.
30,
2017).
Furthermore, Dr. Lee-Sigler did not point to any evidence to
support
her
opinion
that
Gursky
prior to December 31, 2013.
possessed
these
limitations
Strong, 88 F. App'x at 845–46
(“Although [the medical source] opined long after the relevant
period
period,
that
such
Claimant
a
had
been
retrospective
disabled
and
during
conclusory
the
relevant
opinion
is
not
entitled to significant weight because it is not supported by
relevant and objective evidence.” (citing Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 287 (6th Cir. 1994); 20
C.F.R. § 404.1527(d)(2)–(3))).
The absence of any pertinent
connection between this opinion and the relevant time period
renders it of little value to an ALJ.
In failing to demonstrate
that the evidence is new or material, Gursky has not carried the
burden of proof prescribed by 42 U.S.C. § 405(g).
Thus, the
court denies this portion of her appeal.
D.
Whether the ALJ Erred When Assessing the Medical Sources’
Opinions
1.
Assessment of Dr. Lee-Sigler’s Opinion
Gursky argues that the ALJ erred by giving insufficient
weight to Dr. Lee-Sigler’s incomplete medical assessment.
-10-
As
discussed above, Dr. Lee-Sigler began treating Gursky on October
1, 2014, and saw her three additional times before partially
completing the medical assessment form Gursky submitted to the
ALJ.
(R. at 761–61, 788.)
that
Gursky
arthritis,
788.)
suffered
Dr. Lee-Sigler reported to the ALJ
from
fibromyalgia,
lumbar
spondylosis,
sacroiliitis,
and
rheumatoid
bursitis.
(R.
at
In addition, Gursky had a limited range of external and
internal
rotation
in
her
left
hip
and
sacroiliac joint area and lateral hip.
result
of
these
conditions,
Dr.
tenderness
in
(R. at 788.)
Lee-Sigler
her
As a
checked
a
box
indicating that Gursky would frequently experience symptoms that
would interfere with her attention and concentration.
788–89.)
of
the
(R. at
Dr. Lee-Sigler stated that she did not fill out three
pages
of
the
evaluating Gursky.
The
ALJ
gave
form
because
she
failing
that
to
little
the
give
not
yet
finished
(R. at 792.)
weight
to
Dr.
ALJ
a
violated
reasoned
Lee-Sigler’s
opinion
(R. at 29.)
because the assessment was incomplete.
contends
had
Gursky
procedural
basis
for
requirements
setting
aside
by
this
incomplete opinion.
Treating sources are acceptable medical sources who have,
or
have
claimant.
had,
20
an
“ongoing
C.F.R.
§
treatment
relationship”
404.1527(a)(2).
If
an
ALJ
with
the
finds
a
treating source’s diagnostic techniques are medically acceptable
-11-
and the substantial evidence of the claimant’s record accords
with the treating source’s medical opinion, then the ALJ will
give
that
opinion
20 C.F.R. § 404.1527(c)(2).
source’s
opinion
does
“controlling
In
not
the
meet
event
these
that
weight.”
the
treating
requirements
and,
therefore, does not merit controlling weight, the ALJ must apply
a set of regulatory factors to determine what weight to give the
opinion.
20 C.F.R. § 404.1527(c)(2)–(6).
The
Sixth
Circuit
emphasizes that ALJs must apply all of these factors, but it has
recognized three instances where it amounts to harmless error
that an ALJ failed to apply the factors to the treating source’s
opinion.
See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546–
47 (6th Cir. 2004)(citing N. L. R. B. v. Wyman-Gordon Co., 394
U.S. 759, 766 n.6 (1969)).
One of these exceptions is when the
“treating source’s opinion is so patently deficient that the
Commissioner could not possibly credit it.”
Id.
Although the ALJ erred by failing to apply the regulatory
factors to Dr. Lee-Sigler’s incomplete medical assessment, the
error
was
deficient.”
harmless
as
Dr.
Lee-Sigler’s
opinion
is
“patently
The first component contributing to the deficiency
of this opinion is that it lacks any explanation as to how or
why Gursky’s condition would frequently interfere with her work.
See Hernandez v. Comm'r of Soc. Sec., 644 F. App'x 468, 474 (6th
Cir. 2016)(finding a doctor’s opinion patently deficient because
-12-
it consisted of a “check-box analysis . . . not accompanied by
any explanation” (citing Keeton v. Comm'r of Soc. Sec., 583 F.
App’x 515, 525 (6th Cir. 2014))); Ellars v. Comm'r of Soc. Sec.,
647 F. App'x 563, 566–67 (6th Cir. 2016) (citations omitted)
(same).
Second, the opinion is deficient because it is based
upon a limited treatment relationship that began almost a year
after the last date Gursky was insured.
Watters v. Comm'r of
Soc. Sec. Admin., 530 F. App'x 419, 423 (6th Cir. 2013) (finding
a treating source’s opinion patently deficient because, among
other reasons, the “medical examinations post-dated the relevant
period
by
two
to
seven
years”).
Finally,
it
is
because, as the ALJ pointed out, it is incomplete.
deficient
See Edwards
v. Comm'r of Soc. Sec., 636 F. App'x 645, 650–51 (6th Cir. 2016)
(finding that a treating source’s failure to complete a mental
impairment
questionnaire
was
one
of
the
“reasons
for
discounting” it); Riddle v. Astrue, No. 3:08-CV-132, 2009 WL
2406423, at *7 (E.D. Tenn. July 31, 2009) (same).
the
insubstantial
nature
of
the
opinion,
the
In light of
ALJ’s
abridged
explanation of the weight that it merited was a harmless error.
2.
Assessment of Aaron Potratz’s Opinion
Gursky argues that the ALJ should have given greater weight
to the opinions of her therapist Aaron Potratz, LPC, MA.
No. 12 at 16 to 18.)
(ECF
Potratz began treating Gursky on February
7, 2013, and stopped on October 8, 2013, shortly after Gursky
-13-
moved from Oregon to Tennessee.
(R. at 673, 693.)
Over the
course of this treatment, Potratz met with Gursky 16 times both
individually and in couple’s sessions.
(R. at 673–93.)
These
sessions lasted an average of 55 minutes, but several lasted as
long as 85 minutes and two lasted for over 100 minutes.
673–93.)
(R. at
During this treatment, Gursky discussed the severity
of her depression; problems with her antidepressants; episodes
of confusion, anger, and disorientation; and her inability to
cope with her emotions.
(R. at 673, 677, 683–86, 689–90.)
On August 23, 2013, Potratz wrote an opinion in which he
stated
that
Gursky
presented
with
symptoms
chronic Posttraumatic Stress Disorder.
consistent
with
(R. at 675–76.)
He
further explained that, despite the coping skills practiced in
therapy, she remained “subject to bouts of depression, anxiety,
anger and other destructive (yet normative for traumatic events)
reactions.”
(R. at 675–76.)
He also stated that she “has
difficulty communicating clearly in some social situations, and
becomes overanxious without the presence of her companion animal
(dog).”
(R. at 676.)
On May 4, 2015, Potratz filled out a mental assessment form
based upon his sessions with Gursky in 2013.
good
deal
of
this
form
consists
of
(R. at 974–75.)
checked
boxes
by
A
which
Potratz indicated that Gursky would likely miss more than four
days of work a month due to her impairments and that she was
-14-
either seriously limited, unable to meet competitive standards,
or had no useful ability to function in 16 categories of mental
abilities and aptitudes needed to do unskilled work.
974–75.)
Potratz
Gursky’s
substantiated
treatment
and
his
providing
opinion
the
by
(R. at
describing
following
clinical
findings: “Client exhibited flat affect, limited insight, poor
judgment, anxious mood, disorientation during times of stress
(losing time and place), and pressured speech when discussing
stressful
experiences
in
the
safety
of
the
clinical
office.
These symptoms indicate a high severity of impairment.”
(R. at
974.)
Citing Potratz’s status as a non-acceptable medical source,
the length of the treating relationship, and the date when the
treating relationship ended, the ALJ gave Potratz’s opinion and
assessment little weight.
(R. at 29.)
Gursky contests that,
since the opinion was consistent with the treatment notes and
provides
objective
findings,
opinion “great weight.”
the
ALJ
should
have
given
the
(ECF No. 12 at 17 to 18; ECF No. 14 at
3 to 4.)
Therapists
are
not
acceptable
medical
sources,
opinions are not entitled to controlling weight.
so
their
See 20 C.F.R.
§§ 404.1502(a), 404.1513(a); SSR 06-03P, 2006 WL 2329939, at *2
(Aug.
9,
2006).
When
considering
what
weight
to
give
a
therapist’s opinion, the ALJ employs the same factors used for
-15-
analyzing
factors
a
treating
are
source’s
relevant
404.1527(f)(1).
to
opinion,
the
and
applies
opinion.
20
whatever
C.F.R.
§
Those factors include the length and nature of
the treatment relationship, the frequency of exams, the evidence
upon which the therapist bases her or his opinion, the opinion’s
consistency with the record as a whole, whether the therapist
has specialized in her or his area of practice, and any other
relevant
factor,
like
the
therapist’s
claimant’s full medical record.
After
considering
all
the
familiarity
with
the
20 C.F.R. § 404.1527(c)(2)–(6).
pertinent
factors,
if
the
ALJ
determines that the opinion might impact the outcome of the
case, then the ALJ must explain the weight given to the opinion
in a fashion that “allows a claimant or subsequent reviewer to
follow
the
adjudicator’s
reasoning.”
20
C.F.R.
§
404.1527(f)(2).
In this case, the ALJ had to explain the weight given to
Potratz’s opinions because these opinions would have affected
the outcome of the case.
Potratz opined that Gursky’s mental
limitations would cause her to miss more than four days of work
a month.
(R. at 975.)
The vocational expert testified that
Gursky could not retain any of the jobs she was hypothetically
capable of working if she had more than two unscheduled absences
a month.
(R. at 78.)
-16-
The
ALJ’s
justification
for
the
little
weight
given
to
Potratz’s opinions falls short of the regulatory requirements.
First of all, it is unclear why Potratz’s status as a nonacceptable medical source automatically devalues it.
The SSA
underscores that opinions from other medical sources may be of
great value:
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 nurse practitioners, physician
assistants, and licensed clinical social workers, have
increasingly assumed a greater percentage of the
treatment and evaluation functions previously 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 relevant evidence in the file.
. . . .
. . . [D]epending on the particular facts in a
case, and after applying the factors for weighing
opinion evidence, an opinion from a medical source who
is not an “acceptable medical source” may outweigh the
opinion of an “acceptable medical source,” including
the medical opinion of a treating source.
For
example, it may be appropriate to give more weight to
the opinion of a medical source who is not an
“acceptable medical source” if he or she has seen the
individual more often than the treating source and has
provided better supporting evidence and a better
explanation for his or her opinion.
SSR 06-03P, 2006 WL 2329939, at *3, *5 (Aug. 9, 2006).
treated
Gursky
in
lengthy
sessions
and
provided
Potratz
clinical
findings and detailed notes of the sessions that correlate with
his opinions.
Due to the comprehensive nature of this treating
-17-
relationship,
the
court
is
uncertain
how
Potratz’s
“other
medical source” status devalues his opinions.
The court also does not follow the logic of why the ALJ’s
second
reason,
the
eight-month
length
of
the
treating
relationship, should count against Potratz’s opinions.
Within
those eight months, Potratz met with Gursky 16 times.
This
quantity of meetings works in favor of the opinion, not against
it.
See Hogston v. Comm'r of Soc. Sec., No. 16-1475, 2016 WL
9447154, at *5 (6th Cir. Dec. 29, 2016) (remanding to the ALJ
because, among other reasons, the ALJ’s finding that a therapist
had an “‘extremely brief’ treating relationship” of five months
was
“unsupported”
since
the
therapist
met
with
approximately 24 times in those five months).
the
patient
In light of the
number of consultations Potratz had with Gursky, the court is
unable
to
treating
determine
relationship
why
the
grounds
ALJ
for
deemed
giving
the
length
little
of
weight
the
to
Potratz’s opinions.
It is also hazy why the October 2013 end-of-treatment date
works against the opinion.
If the treatment had ended before
the alleged onset of the disability, then it would be reasonable
for the ALJ to rely upon this date in discounting Potratz’s
opinions.
See Winslow v. Comm'r of Soc. Sec., 566 F. App'x 418,
421 (6th Cir. 2014)(citations omitted)(finding the ALJ properly
gave little weight to an opinion “based on data from a time
-18-
before
[the
claimant’s]
alleged
disability
date”).
Alternatively, if Potratz had not treated Gursky before her last
date insured, then the assessment he provided in 2015 concerning
her condition in 2013 would be of little probative value.
See
Seeley v. Comm'r of Soc. Sec., 600 F. App'x 387, 391 (6th Cir.
2015) (approving an ALJ’s decision to “ignore[]” opinions from
two treating sources made after the claimant’s insurance ended
when
there
was
“no
evidence
that
either
[treating
examined Claimant prior to” the date last insured).
source]
In the
absence of either of these occurrences, is unclear how the date
the treatment
ended
is cause to discount Potratz’s opinion.3
When explaining the reason for the weight given to Potratz’s
opinion, the ALJ did not provide a path of logic that the court
could
follow.
Based
on
this
failure
to
meet
regulatory
requirements, the court will remand the case for the ALJ to
reconsider
and
reanalyze
the
weight
that
Potratz’s
opinion
merits.
3.
Assessment of Paul Hambrick’s Opinion
Gursky argues that the ALJ should have given greater weight
to the opinions of another of her therapists, Paul Hambrick,
3
The court might have inferred from this language that the ALJ is
suggesting the year-and-a-half gap between the end of the
treatment and the creation of the medical assessment is cause
for lessening the weight of the medical assessment; however, the
ALJ’s statement that the 2013 opinion merits little weight for
the same reasons as the 2015 assessment bars that inference.
-19-
M.Ed.
(ECF No. 12 at 16 to 18.)
Hambrick treated Gursky almost
every week from November 12, 2014, to May 12, 2015.
84.)
(R. at 965–
Hambrick’s notes from his treatment of Gursky indicate
that they had 22 sessions together.
Hambrick’s
notes
are
quite
(R. at 965–84.)
challenging
to
Although
decipher,
they
indicate that during this treatment Gursky regularly mentioned
her anxiety and depression and used terms like “angry,” “zoned
out,” “numb,” “rage,” “vulnerable,” “detached,”
and “lonely.”
(R. at 965–673, 980–83.)
On May 8, 2015, Hambrick filled out a mental assessment
form based upon his sessions with Gursky.
(R. at 976–77.)
This
form is essentially identical in format to the form that Potratz
completed.
On the form, Hambrick indicated that, even though he
had not started
treating Gursky
until 2014, he believed
impairments existed on or before December 31, 2013.
77.)
In
the
clinical
findings
section,
suffers from severe depression and anxiety.
he
the
(R. at 276–
stated,
“Client
She also suffers
from various bodily distresses and pain which are exacerbated
with stress.”
(R. at 976.)
The ALJ gave this opinion little weight on the grounds that
Hambrick is not an acceptable source and the opinion was “overly
restrictive” when compared to Hambrick’s treatment notes.
at 29.)
(R.
Gursky opposes this point and argues that Hambrick’s
-20-
treatment notes do support his finding.
(ECF No. 12 at 17 to
18.)
Hambrick’s
notes
are
almost
entirely
inscrutable,
which
leaves the court unable to determine whether the notes support
the severity of the limitations
that he ascribes to
Gursky.
Regardless, the court finds that there are other factors that
diminish the significance of this opinion.
a
treating
insured.
relationship
that
began
after
The opinion reflects
Gursky’s
last
date
See Conner v. Comm'r of Soc. Sec., 658 F. App'x 248,
254 (6th Cir. 2016) (finding a treating physician’s opinion “not
relevant” because it was based upon evaluations that occurred
after “the relevant insured period”); Seeley, 600 F. App'x at
391.
And, it consists of checked boxes supported by conclusory
statements.
See Hernandez, 644 F. App'x at 474; Ellars, 647 F.
App'x at 566–67.
These insufficiencies in Hambrick’s opinion
outweigh any errors the ALJ may have committed when analyzing
the opinion.
See Schanck v. Comm'r of Soc. Sec., No. 12-14837,
2014 WL 1304816, at *6 (E.D. Mich. Mar. 31, 2014)(finding the
unsupported nature of a therapist’s opinion rendered remand for
the ALJ’s failure to analyze the opinion “an idle and useless
formality” (quoting Wilson, 378 F.3d at 547)).
Hence, remand on
this point would be meaningless.
E.
Whether the ALJ Erred When Assessing Gursky’s Description
of Her Symptoms
-21-
Gursky disputes the ALJ’s decision to deem her subjective
complaints
not
credible.
(ECF
No.
12
at
18.)
In
her
application and her hearing testimony, Gursky described the arc
of
her
mental
continuously
and
physical
deteriorating.
condition
(R.
at
from
206.)
2005
to
While
2013
she
was
as
a
foster parent of school-age children from 2009 till 2012, she
stated that her condition impacted her ability to function —
requiring her to rely on her husband for help and limiting the
activities she could plan with the children to those that could
occur while “sitting at the table.”
(R. at 56.)
By 2012, her
health worsened to the point that she could no longer foster.
(R. at 206.)
Gursky depicted her pain as hindering all aspects
of her life including her ability to perform daily activities,
sit, or sleep.
(R. at 246–53.)
She stated that her activity
level depended on whether she was having “good days” or “bad
days.”
On a good day she could to go grocery shopping; on a bad
day the most she could do was “cook a small dinner” likely
consisting of canned vegetables and frozen food.
(R. at 247–
48.)
The ALJ found that Gursky’s work as a foster parent and her
“mild” objective medical diagnoses rendered her complaints “less
than credible.”
(R. at 29.)
Gursky counters that these reasons
are insufficient as she could still be found disabled regardless
of whether she was a foster parent, and while her treatment
-22-
notes
“may
have
shown
only
mild
abnormalities,”
documented findings of “significant tenderness.”
they
also
(ECF No. 12 at
19.)
The Sixth Circuit has “‘held that an administrative law
judge's
credibility
findings
are
virtually
unchallengeable’
absent compelling reasons.”
Shepard v. Comm'r of Soc. Sec., No.
17-1237,
at
2017
WL
4251707,
*4
(6th
Cir.
Sept.
26,
2017)
(quoting Ritchie v. Comm'r of Soc. Sec., 540 F. App’x 508, 511
(6th Cir. 2013)).
Those compelling reasons appear when ALJs’
credibility
determinations
are
not
evidence.”
Rogers, 486 F.3d at 249.
“supported
by
substantial
When making a credibility
determination, ALJs “must consider the entire case record and
give specific reasons for the weight given to the individual's
statements.”
SSR 96-7P, 1996 WL 374186, at *4 (July 2, 1996).4
4
This court has previously found that SSR 16-3p, the SSA’s new
ruling on assessing a claimant’s subjective complaints, applies
to judicial review of ALJ opinions predating March 28, 2016.
See Patterson v. Colvin, No. 13-CV-1040-JDB-TMP, 2016 WL
7670058, at *6–*9 (W.D. Tenn. Dec. 16, 2016), report and
recommendation adopted, No. 13-1040, 2017 WL 95462 (W.D. Tenn.
Jan. 10, 2017).
But, the SSA recently republished 16-3p and
clarified that, while ALJs are to apply SSR 16-3p to any
determination or decision that they make after March 28, 2016,
the SSA expects reviewing courts to apply the “rules that were
in effect at the time we issued the decision under review.” SSR
16-3P, 2017 WL 5180304 *13 n.27 (Oct. 25, 2017).
The ALJ’s
decision in this case is dated August 13, 2015.
Hence, this
court will assess the ALJ’s compliance with 96-7p. See Lewis v.
Berryhill, No. 16 C 7870, 2017 WL 5191877, at *6 (N.D. Ill. Nov.
9, 2017) (noting that the republished ruling requires the court
to apply 96-7p, but emphasizing that the ALJ is still required
to apply SSR 16-3p on remand).
-23-
In the event that “an individual's statements about pain or
other symptoms are not substantiated by the objective medical
evidence, the adjudicator must consider all of the evidence in
the
case
record
.
.
.
.”
Id.
Beyond
objective
medical
evidence, the SSA has identified several specific considerations
for ALJs.
location,
These include the claimant’s daily activities; the
duration,
aggravating
frequency
and
type,
dosage,
factors;
intensity
of
the
effectiveness,
symptoms;
and
side
effects of medications; treatment other than medication that the
claimant receives; and any other information relevant to these
symptoms.
20 C.F.R. § 404.1529(c)(3)(i)–(vii).
The record does not support the first reason that the ALJ
provided for discounting Gursky’s subjective complaints.
It is
true that a claimant’s ability to care for a child suggests a
level
of
activity
disability.
that
can
weigh
against
a
finding
of
See Moore v. Comm'r of Soc. Sec., 573 F. App'x 540,
543 (6th Cir. 2014).
Nonetheless, Gursky explained that her
condition forced her to stop fostering well before her last date
insured.
parent
Thus, it is not apparent how her service as a foster
discredits
her
subjective
complaints.
See
Starks
v.
Astrue, No. 3:09-0062, 2011 WL 2433708, at *20–*22 (M.D. Tenn.
June 14, 2011), report and recommendation adopted, No. 3:09-CV00062, 2011 WL 2633138 (M.D. Tenn. July 5, 2011) (finding the
ALJ’s credibility determination unsupported by the evidence when
-24-
the ALJ “overstated [the claimant’s] role as care-taker” of her
mother).
Without the foster parent component, the ALJ’s dismissal of
Gursky’s complaints rests entirely upon the lack of objective
medical evidence to support her complaints.
Although the ALJ
listed all of the regulatory factors that ALJs must consider
beyond objective medical evidence, there is no indication in the
opinion that the ALJ
applied the factors and
considered the
significance of other evidence in Gursky’s records such as her
consistent pursuit of treatment or the numerous pain medications
and antidepressants prescribed to her.
(R. at 233–50, 346, 351,
354, 369, 374, 378, 390, 463, 481, 745.)
Consequently, this
credibility determination relies on an impermissible reason for
disregarding
a
claimant’s
complaints.
See
20
C.F.R.
§
404.1529(c)(2) (“[W]e will not reject your statements about the
intensity and persistence of your pain . . . solely because the
available objective medical evidence does not substantiate your
statements.”).
In addition, when a claimant has a fibromyalgia diagnosis,
objective medical evidence of the condition is rare.
Minor v.
Comm'r of Soc. Sec., 513 F. App'x 417, 434–36 (6th Cir. 2013)
(“[U]nlike medical conditions that can be confirmed by objective
testing, fibromyalgia patients present no objectively alarming
signs.” (quoting Rogers, 486 F.3d at 243)); Kalmbach v. Comm'r
-25-
of Soc. Sec., 409 F. App'x 852, 863–65 (6th Cir. 2011) (“[T]he
absence
of
diagnosis
objective
of
irrelevant.”).
medical
fibromyalgia
evidence
or
Accordingly,
its
the
to
substantiate
the
severity
basically
requires
SSA
is
ALJs
assessing
claimants with fibromyalgia to “consider a longitudinal record
whenever possible because the symptoms of FM can wax and wane so
that a person may have ‘bad days and good days.’”
2012 WL 3104869, *6 (July 25, 2012).
SSR 12-2P,
The ALJ’s reliance on the
lack of objective medical evidence as a basis for setting aside
Gursky’s complaints disregards fibromyalgia’s unique qualities
and how these qualities might manifest in Gursky’s life.
For
all of these reasons, the court finds that the ALJ’s decision to
disregard
Gursky’s
complaints
is
unsupported
evidence and constitutes reversible error.
by
substantial
See Cole, 661 F.3d
at 937 (“An ALJ's failure to follow agency rules and regulations
‘denotes
a
lack
of
substantial
evidence,
even
where
the
conclusion of the ALJ may be justified based upon the record.’”
(quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 407 (6th
Cir. 2009))).
III. CONCLUSION
For the foregoing reasons, the court reverses the ALJ’s
decision and remands the case pursuant to sentence four of 42
U.S.C. § 405(g) for proceedings consistent with this opinion.
IT IS SO ORDERED.
-26-
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
December 19, 2017
Date
-27-
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