SHARON L. OVINGTON, Chief Magistrate Judge.
This Social Security disability benefits appeal is before the Court on Plaintiff's statement of errors (Doc. 8), the Commissioner's memorandum in opposition (Doc. 12), Plaintiff's reply (Doc. 13), the administrative record (Docs. 6 and 7), and the record as a whole. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff "not disabled" and therefore not entitled to disability insurance benefits ("DIB") nor Supplemental Security Income ("SSI"). (See Doc. 6, PageID # 67-83 ("ALJ's decision")).
On August 2, 2010, Plaintiff Darrell Theurer protectively filed an application for a period of disability and DIB, as well as SSI, alleging disability beginning December 14, 2009. (Doc. 6, PageID # 67). Plaintiff alleged he was unable to work due to the following impairments: severe depression, anxiety, diabetes, neuropathy, sleep disorder, slow reading, difficulty comprehending, and color blindness. (Id. at 371). His claim was denied initially and on reconsideration. (Id. at 67).
Plaintiff requested a hearing before an ALJ, which was held on April 2, 2013.
On June 26, 2013, ALJ Amelia G. Lombardo issued an unfavorable decision, finding that Plaintiff had not been under a disability as defined in the Social Security Act, and was therefore not entitled to a period of disability, DIB and SSI. (Id. at 64). Although finding that Plaintiff was not capable of performing his past relevant work, the ALJ found that Plaintiff had the residual functional capacity ("RFC")
The decision became final and appealable on September 4, 2014, when the Appeals Council denied Plaintiff's request for review. (Id. at 56-58). Plaintiff then properly commenced this action for judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
At the time of the hearing, Plaintiff was 41 years old. (Doc. 6, PageID # 82). He completed high school (through special education classes) in 1991, and had some training in masonry work shortly thereafter. (Id. at 372). Plaintiff had no other specialized job training, and had not attended any trade or vocational schools. (Id.) The ALJ determined that Plaintiff had past relevant work as a construction worker, bicycle assembler, stock clerk, building maintenance laborer, and lawn and garden machine assembler. (Id. at 81-82). However, based on the VE's testimony, the ALJ found that Plaintiff's functional limitations precluded him from returning to his past relevant work. (Id.)
The ALJ's "Findings," which represent the rationale of her decision, are as follows:
(Doc. 6, PageID ## 70-83). In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations and was therefore not entitled to a period of disability, DIB, or SSI. (Id. at 83).
On appeal, Plaintiff argues that: (1) the ALJ failed to follow the Social Security Administration's own regulatory requirements in weighing the medical source opinions which therefore denotes a lack of substantial evidence and an error as a matter of law; and (2) the ALJ failed to properly evaluate Plaintiff's credibility, pain, and symptoms, pursuant to the Social Security Administration's own rulings and regulations and Sixth Circuit case law. (Doc. 8).
The Court's inquiry on appeal is limited to whether the ALJ's non-disability finding is supported by substantial evidence and whether the correct legal standard was applied. 42 U.S.C. § 405(g); Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). Substantial evidence is more than a "mere scintilla" but less than a preponderance of the evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971) (substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"). In reviewing the ALJ's decision, the district court must look to the record as a whole and may not base its decision on one piece of evidence while disregarding all other relevant evidence. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Even if the district court "might have reached a contrary conclusion of fact, the [ALJ's] decision must be affirmed so long as it is supported by substantial evidence." Kyle, 609 F.3d at 854-855 (citing Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 604-05 (6th Cir. 2009)).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he was unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment, or combination of impairments, which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).
The relevant facts, as reflected in the record, are as follow:
Plaintiff was examined by
Dr. Boerger indicated that Plaintiff has difficulty with reading, math, and was unable to perform Serial 7s. (Id. at 497, 499). Plaintiff also showed difficulties with comprehension, such as his inability to understand the phrase, "Don't count your chickens before they hatch." (Id. at 499). Dr. Boerger opined that Plaintiff "seemed to be of borderline range level intellectual abilities," although his full scale IQ of 67 "falls more than 2 standard deviations below the mean and is at the upper end of the range of mild mental retardation." (Id. at 500). Dr. Boerger listed Anxiety Disorder (not otherwise specified) and Dysthymic Disorder for Plaintiff's diagnosis. (Id. at 501).
N
On May 3, 2011,
Plaintiff presented to the emergency room at Wayne Hospital on July 12, 2011, with complaints of chronic pain in his knees, hips, and lower back; suicidal thoughts; and depression, stating he "just wanted to end [his] life." (Doc. 7, PageID ## 1187, 1189). He advised the hospital staff that no amount of medicine was going to help. (Id. at 1191).
Plaintiff again presented to the Wayne Hospital emergency room on December 6, 2012 with complaints of depression, anxiety, and suicidal thoughts. (Id. at 1338-1386). He reported feeling hopeless, helpless, not sleeping, having difficulty functioning, and feeling overwhelmed. (Id. at 1369). He stated he was sleeping less than four hours each night. (Id.) He also reported significant mood swings, anger, agitation, and irritability. (Id.) It was further noted that Plaintiff's mother had obtained a restraining order against him, as he had allegedly threatened to kill her. (Id.) Plaintiff was admitted to the hospital and placed on observation after he expressed fear that he was losing control and that he would hurt himself and others. (Id.) He was diagnosed with Major Depression, Recurrent and Severe. (Id. at 1370). Plaintiff was discharged on December 11, 2012, after it was determined that through medication and therapy, Plaintiff's mood had stabilized and he no longer posed a threat to himself or others. (Id.)
Dr. Lauffenburger opined that Plaintiff's impairments have lasted or can be expected to last at least 12 months. (Id.) Dr. Lauffenburger further noted that Plaintiff's impairments would cause him to be absent from work more than three times a month, and that, on average, he would be distracted by his psychological symptoms during half of an eight hour work day. (Id. at 1440). Dr. Lauffenburger concluded that Plaintiff's mental impairment caused him to experience a moderate degree of: restrictions of daily living activities, difficulty in maintaining social functioning, and episodes of deterioration or decompensation in work; and a marked degree of deficiency in his concentration, persistence, or pace, resulting in failure to complete tasks in a timely manner. (Id.)
Dr. Dahar opined that Plaintiff's mental impairments have lasted or can be expected to last at least 12 months. (Id.) Dr. Dahar further noted that Plaintiff's impairments would cause him to be absent from work more than three times a month and that, on average, he would be distracted by his psychological symptoms during half of an eight hour work day. (Id. at 896). Dr. Dahar concluded that Plaintiff's mental impairment caused him to experience a moderate degree of: restrictions of daily living activities, difficulty in maintaining social functioning, and episodes of deterioration or decompensation in work; and a marked degree of deficiency in his concentration, persistence, or pace, resulting in failure to complete tasks in a timely manner. (Id.)
Plaintiff testified that he was living in a first floor apartment; however, he was previously homeless for an extended period of time and had been living outside, with others, or wherever he "could find or get to get through the night or day." (Doc. 6, PageID # 98). Eventually, his mental health provider helped him find shelter. (Id.) Richard Baker, his mental health case worker, drove Plaintiff to the hearing. (Id.)
Plaintiff testified to past work framing houses and stated that he worked at Wal-Mart. (Id. at 99). He was let go from Wal-Mart "because of the economy" around 2009. (Id. at 100). He also tried to work temporary jobs in 2010, but was unsuccessful in maintaining employment. (Id.) Plaintiff testified that he injured his dominant right-hand while working at Wal-Mart and now can only use his first three fingers, making it difficult to grab objects or open things. (Id. at 104).
In 2012, Plaintiff was hit by a car while riding his bicycle. (Id. at 105). The accident fractured his legs and broke four ribs. (Id.) He testified that his left side "hurts like crazy." (Id. at 106).
Plaintiff has also been diabetic since the age of three and takes insulin for his diabetes, although he still experiences symptoms such as fluctuating blood sugar levels. (Id. at 114-115). These symptoms have caused him to seek treatment at the emergency room. (Id. at 115). Further, Plaintiff suffers from diabetic retinopathy, which has caused 50-75% blindness in his right eye. (Id. at 105). Plaintiff wears prescription eyeglasses, but is still unable to see well out of his right eye. (Id.)
As to mental impairments, Plaintiff testified that he receives mental health treatment at Darke County Mental Health. (Id.) He sees his psychologist, Dr. Lauffenburger, once a week when he is having problems. (Id. at 116). He also sees his psychiatrist, Dr. Dahar, once every six weeks. (Id.) Plaintiff testified that he has trouble concentrating due to his psychological symptoms, noting that concentration is "very hard to do even with a movie or even a book or even on a computer and stuff." (Id. at 119). He stated that he was in special education classes in all subjects when he attended school. (Id. at 112). Plaintiff relies on his case manager to help him fill out forms, as he has difficulty figuring them out. (Id. at 113). Plaintiff sought assistance from the Bureau of Vocational Rehabilitation ("BVR") to help him find a job; however, after performing an evaluation, the BVR were unable to place him in any position. (Id. at 115). Plaintiff stated that his inability to find a job despite his best efforts makes it harder for him, as it worsens his depression, and hurts his feelings. (Id. at 120).
A typical day for Plaintiff involves getting up and taking a shower to loosen up his muscles. (Id. at 107). He then eats breakfast and reads the "24 hour book," which is a book from Alcoholics Anonymous ("AA") that helps him through the day. (Id. at 108). He attends AA meetings about six times per week. (Id.) He walks to his meetings. (Id.) Plaintiff also reads his Bible and attends church on Sundays. (Id. at 108-109). He also volunteers to clean at his church when he can. (Id. at 111).
Vocational expert Eric Pruitt testified that
As to mental impairments, the ALJ relied exclusively on the opinions of
Plaintiff argues that the ALJ failed to adhere to the regulatory requirements for weighing medical opinions and, further, that she erred in disregarding the opinions of his treating physicians, Dr. Lauffenburger and Dr. Dahar.
"Regardless of its source, [the ALJ must] evaluate every medical opinion [she] receive[s]," in order to determine whether a claimant is disabled. 20 C.F.R. § 1527(b), (c). However, "not all medical sources need be treated equally." Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 642 (6th Cir. 2013) (internal quotation marks and citations omitted). The Regulations require that a treating doctor's opinion be given "controlling weight" as long as it is "well-supported" by objective evidence and is "not inconsistent with the other substantial evidence." 20 C.F.R. § 1527(d)(2). Greater weight is generally given to the opinions of treating sources because treating physicians can provide a detailed, longitudinal picture of a claimant's medical impairments and may bring a unique perspective to the medical evidence that cannot be obtained from reports of individual examinations (e.g., consultative examinations) or from objective findings alone. Id. Accordingly, less weight is given to non-treating and, certainly, nonexamining sources. Id.
However, `[i]t is an error to give an opinion controlling weight simply because it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the case record.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2, 1996)). "If the opinion of a treating source is not accorded controlling weight, an ALJ must apply certain factors — namely, the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, the supportability of the opinion, consistency of the opinion with the record as a whole, and the specialization of the treating source — in determining what weight to give the opinion." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (discussing 20 C.F.R. § 1527(d)(2)).
If, upon consideration of the § 1527 factors, the ALJ rejects the opinion of a treating physician, she must articulate "good reasons" for doing so. Wilson, 378 F.3d at 544. "The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases ... [but] also ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule." Id. at 544-45 (internal quotation marks and citations omitted). In particular, the ALJ's decision must articulate the "specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5 (July 2, 1996). Notably, the ALJ's duty to properly articulate `good reasons' is so significant that, "failure to follow the procedural requirement of identifying the reasons for discounting the opinions and for explaining precisely how those reasons affected the weight accorded the opinions
Here, the ALJ determined that the opinions of Plaintiff's treating physicians, David Lauffenburger, Ph.D. and Irfan Dahar, M.D., "cannot be given controlling or even deferential weight (and are, in fact, entitled to no weight whatsoever)." (Doc. 6, PageID # 74).
In discussing the medical opinions of Plaintiff's treating physicians, the ALJ states that Dr. Lauffenburger diagnosed Plaintiff with major depressive disorder and assigned Plaintiff a Global Assessment of Functioning ("GAF") score of 60.
Next, the ALJ addresses the opinion of Plaintiff's treating physician, Dr. Dahar, by stating only that "[c]uriously, [Dr. Dahar], provided identical conclusions to those of Dr. Lauffenburger (compare Exhibits 21F and 54F)." (Doc. 6, PageID # 72). Notably,
As to Dr. Boerger, who examined Plaintiff at the request of the BDD, the ALJ notes that he diagnosed Plaintiff with anxiety disorder (not otherwise specified), dysthymic disorder, and borderline intellectual functioning, and ultimately assigned Plaintiff a
Finally, as to Drs. Warren and Steiger, who evaluated Plaintiff at the request of the BDD, the ALJ states that both doctors opined that Plaintiff had a "severe mental impairment." (Doc. 6, PageID # 73). Further, both Drs. Warren and Steiger found that Plaintiff suffered from `
Significantly, the ALJ acknowledges that "
In electing to completely discredit Plaintiff's treating sources, the ALJ stated that their "conclusions are purely speculative and viewed with considerable skepticism (especially given the fact that both assessments were done at the behest of [Plaintiff's] counsel and were purportedly completed separately and on different dates [days apart] but are identical)."
As an initial matter, it is well-established that mental disorders are extremely difficult to ascertain and verify with the same precision, documentation, and objective testing available for physical conditions. Keeton v. Comm'r of Soc. Sec., 583 F.App'x 515, 526 (6th Cir. 2014) ("This Court has acknowledged the difficulty inherent in proving psychological disabilities") (quoting Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) ("[A] psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as a medical impairment")). Accordingly:
Blankenship, 874 F.2d at 1121 (quoting Poulin v. Bowen, 817 F.2d 865, 873-74 (D.C. Cir. 1987)) (emphasis added); see Warford v. Astrue, No. 09-52, WL 3190756, at *6 (E.D. Ky. Aug. 11, 2010) (
The Commissioner also argues that the ALJ properly gave "no weight" to Plaintiff's treating source opinions because they are allegedly inconsistent with the record as a whole. (Doc. 12 at 8). In support, the Commissioner reiterates the argument that "the [treating source] doctors did not describe any significant symptoms or clinical findings that support their opinions." (Id. at 9). However, as set forth, supra, this argument is erroneous. Further, the treating sources listed clinical signs and symptoms observed throughout the course of Plaintiff's regular and frequent treatment, and the record is replete with treatment, emergency department, and hospital admission notes confirming the treating sources' opinions and reporting consistent signs and symptoms of mental impairment, including severe depression, suicidal thoughts, anxiety, panic attacks, insomnia, difficulty remaining alert and attentive, difficulty with cognitive and motor skills, difficulty with comprehension, difficulty with general daily functioning, and borderline mental retardation. (See, e.g., Docs. 6 and 7, PageID ## 441-480, 581-590, 614-637, 772-786, 817-831, 848-865, 874, 889-892, 1338-1386, 1563-1586). Both the ALJ and Commissioner failed to properly consider the vast majority of the record evidence, instead focusing only on notes indicating that Plaintiff was doing "fairly well" or that his prognosis was "good."
Further, Plaintiff correctly argues that the ALJ erroneously subjected the treating source opinions to high scrutiny, while applying
Moreover, the ALJ's reliance on the non-examining source evaluations is rendered all the more problematic, given that their evaluations were conducted in January and May 2011, and therefore,
Finally, even if the ALJ's decision to discredit treating source opinions was justified, the ALJ still failed to comply with the Social Security Administration's Rulings, which direct that:
Soc. Sec. Rul. No. 96-2p (emphasis added). Generally, "a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." Id.; see Rothgeb v. Comm'r of Soc. Sec., 626 F.Supp.2d 797, 807 (S.D. Ohio 2009) ("the ALJ erred by applying only the standards to determine if [the treating source opinion] was entitled to controlling weight under the treating physician rule, but failing to apply the remaining factors required by the Regulations").
Thus, the ALJ's finding that the treating source opinions were not well-supported by medically acceptable clinical and laboratory techniques and inconsistent with the other substantial evidence in the case record
In sum, the ALJ erred by failing to afford proper weight to Plaintiff's treating sources' opinions and instead relying upon the opinion of two non-examining psychologists, whose opinions pre-dated significant medical developments evidenced on the record. Further, the ALJ's determination that the treating sources' opinions are inconsistent with the record is not supported by substantial evidence. In fact, the opinions of Drs. Lauffenburger and Dahar, who treated Plaintiff on a regular and frequent basis for well over one-year
Therefore, the ALJ's erred as a matter of law in her analysis of the medical evidence and the decision must be reversed.
Next, Plaintiff argues that the ALJ's erred in finding that he is not credible.
In making a determination of disability, "an ALJ is not required to accept a claimant's subjective complaints and may properly consider [the claimant's] credibility." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
The ALJ's credibility determination "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight ... [given] to the individual's statements and the reasons for that weight." Id., at *2. Indeed, "`[i]t is more than merely `helpful' for the ALJ to articulate reasons ... for crediting or rejecting particular sources of evidence. It is absolutely essential for meaningful appellate review.'" Hurst v. Sec'y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985) (quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
"One strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record." SSR 96-7p, at *5. "Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among medical reports, claimant's testimony, and other evidence." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citations omitted). However, "[a]n individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence." SSR 96-7p, at *1.
Here, the ALJ gave very little reasoning for discrediting Plaintiff regarding his mental impairments, other than mentioning his ability to perform basic, sporadic daily activities. (Doc. 6 at 80-81). Admittedly, daily activities, although not dispositive, may show that a claimant's symptoms are not as limiting as alleged. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(2)(i); see Blacha v. Sec'y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990) (an ALJ may "consider household and social activities engaged in by the claimant in evaluating a claimant's assertions of pain or ailments"). However, there is a significant difference between doing minimal daily activities and performing work on a regular and continuing basis.
While it is not apparent what weight, if any, the ALJ gave Plaintiff's statements regarding his mental impairments, it is evident that the ALJ discredited his statements merely due to his ability to engage in daily activities such as going to church, reading, and going to Alcoholics Anonymous meetings. (Doc. 6, PageID ## 80-81). However, Plaintiff's ability to perform these limited activities is not substantial evidence that his symptoms are not disabling and does not support a finding that he can perform substantial gainful activity in a full-time work position. See 20 C.F.R. § 404.1572(c) ("[g]enerally, we
In short, the ALJ failed to properly evaluate and articulate Plaintiff's credibility regarding his symptoms and, therefore, her decision is not supported by substantial evidence.
Remand is appropriate when the ALJ's decision is not supported by substantial evidence or where the Commissioner failed to apply the correct legal criteria. Bowen, 478 F3d at 746. Moreover, even if supported by substantial evidence, remand is appropriate if the ALJ failed to follow the Administration's own regulations, thereby prejudicing a plaintiff on the merits or depriving a plaintiff of a substantial right. Id. Remand may also be warranted when the ALJ failed to consider certain evidence, or when the ALJ failed to consider the combined effect of the plaintiff's impairments. Id. at 747-50; Gentry, 741 F.3d at 725-26.
The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Accordingly, where, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing, or to reverse and order benefits be granted. 42 U.S.C. § 405(g).
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); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). The Court may award benefits where the proof of disability is overwhelming, or where proof of disability is strong and opposing evidence is lacking in substance, such that remand would merely involve the presentation of cumulative evidence. Faucher, 17 F.3d at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985).
As fully recited here, and as evidenced by the medical record and the
Based upon the foregoing, the Court believes the decision of the Commissioner that Plaintiff Darrell Theurer was not entitled to supplemental security income and disability insurance benefits, is
Accordingly, the Court
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
