MICHAEL J. NEWMAN, Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and therefore unentitled to Disability Insurance Benefits ("DIB") and/or Supplemental Security Income ("SSI").
Plaintiff filed for DIB and SSI on February 9, 2011 alleging a disability onset date of December 31, 1998. PageID 281-88. Plaintiff claims disability as a result of a number of mental impairments including, inter alia, anxiety, attention deficit hyperactivity disorder ("ADHD"), bipolar disorder, and obsessive compulsive disorder ("OCD"). PageID 83.
After initial denials of his applications, Plaintiff received hearings before ALJ Jessica Inouye on July 19, 2012 and May 14, 2013. PageID 100-44. The ALJ issued a written decision on June 11, 2013 finding Plaintiff not disabled. PageID 80-92. Specifically, the ALJ's findings were as follows:
PageID 82-92.
Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 53-55. Plaintiff then filed this timely appeal. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007) (noting that, "[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days from the Appeals Council's notice of denial in which to file his appeal").
In her decision, the ALJ set forth a detailed recitation of the underlying medical evidence in this case. PageID 83-91. Plaintiff, in his Statement of Errors, sets forth a detailed summary of the record evidence. Doc. 8 at PageID 962-69. The Commissioner, in response, defers to the ALJ's recitation of the relevant medical evidence and presents no specific objection to Plaintiff's summary. Doc. 11 at PageID 988. Accordingly, except as otherwise noted in this Report & Recommendation, the undersigned incorporates Plaintiff's undisputed summary and the ALJ's recitation of the evidence.
The Court's inquiry on a Social Security appeal is to determine (1) whether the ALJ's non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). "[A] decision of the Commissioner will not be upheld where the [Social Security Administration] 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, 478 F.3d at 746.
To be eligible for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation 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, 475 F.3d at 730, the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is disabled under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
On appeal, Plaintiff argues that the ALJ erred in: (A) weighing the medical opinion evidence; and (B) finding him not fully credible. Doc. 8 at PageID 961.
Plaintiff first claims that the ALJ erred in assessing the opinion of his treating psychiatrist Sarita Mahajan, M.D.
"An ALJ is required to give controlling weight to `a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s)' if the opinion `is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.'" LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 384 (6th Cir. 2013) (citation omitted) (alterations in original). This requirement is known as the "treating physician" rule. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (citation omitted). Greater deference is given to treating source opinions "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.]" 20 C.F.R. § 404.1527(c)(2); see also Blakley, 581 F.3d at 406. Thus, an ALJ must give controlling weight to a treating source if the ALJ finds the treating physician's opinion well-supported by medically acceptable evidence and not inconsistent with other substantial evidence in the record. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Closely associated with the treating physician rule is the "good reasons rule," which "require[s] the ALJ to always give good reasons in [the] notice of determination or decision for the weight given to the claimant's treating source's opinion." Blakley, 581 F.3d at 406-07. "Those good reasons must be `supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Id.
Thus, when the ALJ declines to give controlling weight to a treating physician's assessment, "the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id. at 406; see also 20 C.F.R. § 404.1527(c).
An ALJ is not required to accept a physician's conclusion that his or her patient is "unemployable." Whether a person is disabled within the meaning of the Social Security Act is an issue reserved to the Commissioner, and a treating physician's opinion — that his or her patient is disabled — is not "give[n] any special significance." 20 C.F.R. § 404.1527(d)(3); see Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (stating that "[t]he determination of disability is ultimately the prerogative of the Commissioner, not the treating physician"). However, "[t]here remains a presumption, albeit a rebuttable one, that the opinion of a treating physician is entitled to great deference." Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
In May 2013, after treating Plaintiff for three months, Dr. Mahajan diagnosed Plaintiff with bipolar and anxiety disorders, and opined that he has no limitations in regard to activities of daily living; slight limitations in maintaining social functioning; moderate limitations in concentration, persistence, or pace; and moderate limitations in regard to episodes of deterioration and decompensation in work.
PageID 89.
The undersigned agrees with Plaintiff that the ALJ erred in assessing, and ultimately discounting, Dr. Mahajan's opinion. Initially, the Court notes that the ALJ failed to mention the concept of controlling weight or set forth the required analysis. See Wilson, 378 F.3d at 544; 20 C.F.R. § 404.1527(c)(2). Because of the ALJ's failure in this regard, the Court cannot determine whether she undertook the "two-step inquiry" required when analyzing treating source opinions. See note 5 supra; see also Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir. 2013); Chrismon v. Colvin, 531 F. App'x 893, 900 (10th Cir. 2013). The lack of explanation regarding the "controlling weight [analysis] hinders a meaningful review of whether the ALJ properly applied the treating-physician rule that is at the heart of this regulation." Gayheart, 710 F.3d at 377 (citations omitted). Such failure amounts to error. See Aytch v. Comm'r of Soc. Sec., No. 3:13-cv-135, 2014 WL 4080075, at *5 (S.D. Ohio Aug. 19, 2014) (citation omitted).
Even assuming, arguendo, the ALJ adequately conducted the controlling weight test — which the undersigned concludes she did not — the ALJ nevertheless failed to provide good reasons for discounting the weight accorded to Dr. Mahajan's opinion. The reasons given by the ALJ for according the opinion "some" weight, see PageID 89, relate only to Dr. Mahajan's finding regarding Plaintiff's marked episodes of decompensation or deterioration in work. Id. However, Dr. Mahajan never noted "marked" limitations and, instead, opined that Plaintiff was "moderately" limited in regard to episodes of decompensation or deterioration. PageID 857. Accordingly, the ALJ's reasoning is inapplicable to the opinion actually given by Dr. Mahajan.
The Commissioner argues that such error is "inconsequential" because the ALJ's rationale for not accepting this limitation "is valid whether the degree of episodes of decompensation indicated was moderate or marked." Doc. 11 at PageID 989. However, the ALJ's critique related specifically to a "marked" limitation, and "it is the opinion given by an administrative agency rather than counsel's `post hoc rationale' that is under the Court's consideration." Romig v. Astrue, No. 1:12-cv-1552, 2013 WL 1124669, at *6 (N.D. Ohio Mar. 18, 2013) (citations omitted).
In addition to such error, the ALJ also failed to give any reason for rejecting other parts of Dr. Mahajan's opinion including, importantly, her opinion regarding Plaintiff's potential, disabling absenteeism — i.e., that Plaintiff would be absent from work approximately three times per month. PageID 957; see also PageID 128 (wherein the VE testified that "[n]o more than one unscheduled absence a month . . . would be tolerated" in the unskilled jobs identified). In fact, the ALJ incorrectly believed that Dr. Mahajan "indicat[ed] the claimant would be absent from work less than once a month." PageID 89. To the extent that the ALJ's opinion could be read to discount Dr. Mahajan's absenteeism limitation as "vague and conclusory," absent any specific explanation by the ALJ, such conclusory critique is insufficient to discount a work-preclusive limitation — particularly where the VE testified that Plaintiff could not perform the identified jobs if he were to miss three days of work per month. See PageID 128.
Based upon the foregoing, the undersigned finds that the ALJ failed to properly assess and give good reasons, supported by substantial evidence, for discounting the opinion of Plaintiff's treating psychiatrist. See Blakley, 581 F.3d at 409-10 (holding that "the Commissioner must follow his own procedural regulations in crediting medical opinions"). Accordingly, the ALJ's non-disability finding must be reversed.
In his second assignment of error, Plaintiff contends that the ALJ improperly found him less than fully credible. Doc. 8 at PageID 977-79. Finding remand warranted based upon the ALJ's failure to properly assess and weigh Dr. Mahajan's opinion, the undersigned makes no finding with regard to this alleged error. Instead, Plaintiff's credibility — along with all medical source opinions of record — should be assessed anew on remand.
When the ALJ's non-disability determination is not supported by substantial evidence, the Court must determine whether to remand the matter for rehearing or to order the award of benefits. Generally, benefits may be awarded immediately "only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
In this case, evidence of disability is not overwhelming, as there are conflicting medical opinions in the record regarding Plaintiff's limitations. See PageID 152-55, 194-96, 820-26, 828-31, 955-57. Accordingly, the undersigned concludes that remand for further proceedings is proper and need occur. On remand, the ALJ should reassess all of the medical opinion evidence and determine anew Plaintiff's credibility and disability status.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
