MICHAEL J. NEWMAN, Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and thus unentitled to Supplemental Security Income ("SSI"). This case is before the Court upon Plaintiff's Statement of Errors (doc. 8), the Commissioner's memorandum in opposition (doc. 9), Plaintiff's reply (doc. 10), the administrative record (doc. 6),
Plaintiff filed for SSI on January 19, 2012. PageID 216-21. Plaintiff suffers from a number of impairments including, among others, respiratory disorder, depression, and borderline intellectual functioning ("BIF"). PageID 72.
After initial denials of her application, Plaintiff received a hearing before ALJ Elizabeth A. Motta. PageID 96-125. The ALJ issued a written decision on October 4, 2013 finding Plaintiff not disabled. PageID 70-86. Specifically, the ALJ's findings were as follows:
PageID 72-85.
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 51-53. 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 72-84. Plaintiff and the Commissioner also summarize the evidence in their respective briefing before the Court. Doc. 8 at PageID 1726-35; doc. 9 at PageID 1747-51. Accordingly, except as otherwise noted in this Report and Recommendation, the undersigned incorporates the ALJ's recitation of evidence as well as the summaries provided by the parties. Where applicable, the Court will identify the medical evidence relevant to this decision.
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), 1383(c)(3); 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 qualify for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 1382c(a)(3)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are "medically determinable"; expected to result in death or which have lasted or can be expected to last for a continuous period of not less than twelve months; and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful work" that is available in the regional or national economies. Id. §§ 1382c(a)(3)(A), (B).
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:
20 C.F.R. § 416.920(a)(4); see also Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D. Ohio 2001). Claimants bear the ultimate burden of establishing disability under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
In her Statement of Errors, Plaintiff argues that the ALJ erred in: (A) finding she did not meet or equal Listing § 12.05(C); (B) weighing the medical opinion evidence; and (C) finding her not credible. Doc. 8 at PageID 1725. These arguments are addressed in turn.
Plaintiff first argues that the ALJ erred at Step Three of the sequential benefits analysis by concluding that her impairments do not meet or medically equal Listing § 12.05(C). Doc. 8 at PageID 1736-38. The Listing of Impairments "describes impairments the SSA considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 653 (6th Cir. 2009) (internal quotations omitted). "Because satisfying the [L]istings yields an automatic determination of disability . . . the evidentiary standards [at Step Three] . . . are more strenuous than for claims that proceed through the entire five-step evaluation." Peterson v. Comm'r of Soc. Sec., 552 F. App'x 533, 539 (6th Cir. 2014). Plaintiff has the burden of proving that he or she meets or equals all of the criteria of a listed impairment. Evans v. Sec'y of Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987).
Listing § 12.05 provides in relevant part:
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. In other words, for a claimant to meet Listing § 12.05, he or she must meet the criteria under subsection A, B, C, or D, as well as "satisfy the diagnostic description" in the introductory paragraph, i.e., "(1) subaverage intellectual functioning; (2) onset before age twenty-two; and (3) adaptive-skills limitations." Hayes v. Comm'r of Soc. Sec., 357 F. App'x 672, 675 (6th Cir. 2009) (internal citations omitted).
"The adaptive skills prong evaluates a claimant's effectiveness in areas such as social skills, communication skills, and daily-living skills." Id. at 677 (internal citation omitted). Although Listing § 12.05 does not define "adaptive functioning," another portion of the Listings defines "adaptive activities" as "cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(1). The plain language of the Listing also does not identify how severe limitations must be to qualify as "deficits in adaptive functioning." Pendleton v. Comm'r of Soc. Sec., No. 1:10-cv-650, 2011 WL 7070519, at *11 (S.D. Ohio Dec. 23, 2011). Nevertheless, case law from the Sixth Circuit and other federal courts suggests that a claimant must have relatively significant deficits to satisfy the Listing. See Farnsworth v. Comm'r of Soc. Sec., No. 2:13-cv-923, 2015 WL 1476458, at *9 (S.D. Ohio Mar. 31, 2015) (collecting cases).
Here, with regard to Listing § 12.05(C), the ALJ found that:
PageID 75-76 (citations to exhibits omitted).
Substantial evidence supports the ALJ's Listings analysis. Although Plaintiff arguably satisfies the criteria under subsection (C) — with a Full Scale Intelligence Quotient ("IQ") of 69 prior to age 22,
Accordingly, although there is evidence upon which the ALJ could have relied to find that Plaintiff met or equaled Listing § 12.05(C) — including her difficulties with reading and writing, PageID 112; and Dr. Bonds's 2008 opinion, PageID 307-14 — substantial evidence supports the ALJ's ultimate conclusion at Step Three. See Peterson, 552 F. App'x at 539; see also Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) ("[e]ven if there is substantial evidence in the record that would have supported an opposite conclusion[,]" the Court must give deference to the ALJ's decision if it is supported by substantial evidence). The undersigned therefore recommends that Plaintiff's first assignment of error be overruled.
Next, Plaintiff argues that the ALJ erred in weighing the medical opinion evidence, including opinions from her treating physician, Carlos Menendez, M.D., and treating therapists, Cynthia Holloway, L.P.N. and Stacy Fellers, M.S., P.C.C. Doc. 8 at PageID 1738-43. "[T]he Commissioner's regulations establish a hierarchy of acceptable medical source opinions[.]" Snell v. Comm'r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). Treating physicians and psychologists top the hierarchy. Id. "Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once." Id. "[N]on-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions." Id. "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual [claimant] become weaker." Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
"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, 385 (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 [the claimant's] 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. § 416.9227(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. § 416.927(c). In addition, unless the opinion of the treating source is entitled to controlling weight, an ALJ must "evaluate all medical opinions according to [these] factors, regardless of their source[.]" Walton v. Comm'r of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).
Plaintiff's treating physician, Dr. Menendez, provided three opinions in 2012, including responses to a set of medical interrogatories on July 17, 2012. PageID 493-95, 673-74, 1633-40. On that date, Dr. Menendez stated that he had treated Plaintiff for over ten years for conditions including coronary disease, osteoarthritis, depression, migraine headaches, and sleep apnea. PageID 1633-34. He opined that Plaintiff's "physical limitations limit her ability to keep up with a normal work regimen [and] [h]er depression causes her to have a reduced ability to handle stressful environments. She has difficulty concentrating." PageID 1635. Dr. Menendez limited Plaintiff's ability to lift, push, and perform postural activities, and opined that Plaintiff is unable, on a sustained basis, to be prompt and regular in attendance; withstand normal productivity standards; demonstrate reliability; complete a normal work day or week without interruption from her symptoms; and perform at a consistent pace. PageID 1635-37. Finally, Dr. Menendez opined that Plaintiff will likely miss work over three times per month, and is unable to perform light or sedentary work. PageID 1640. The vocational expert ("VE") testified that a hypothetical worker who was absent three or more times per month could not maintain employment. PageID 124.
The ALJ afforded "little weight" to Dr. Menendez's opinion because:
PageID 82 (citations to exhibits omitted).
The undersigned finds no error in regard to the ALJ's analysis of Dr. Menendez's opinion regarding Plaintiff's physical limitations,
Additionally, the ALJ erroneously stated that Dr. Menendez had been Plaintiff's primary care physician since 2012 when, instead, Dr. Menendez had treated Plaintiff for over ten years at the time he gave his July 2012 opinion. PageID 82, 1633. The ALJ thus failed to consider the considerable length of the treatment relationship — a factor weighing in favor of according Dr. Menendez's opinion deferential, if not controlling, weight — and how Dr. Menendez could provide the "detailed, longitudinal picture of [Plaintiff's] medical impairment[,]" as contemplated by the regulations. 20 C.F.R. § 416.927(c)(2).
Finally, in weighing Dr. Menendez's opinion regarding Plaintiff's mental impairments, the ALJ failed to discuss its consistency with the opinions of therapists Fellers and Holloway, who each found several mental health-related limitations. See PageID 536-40, 1376-85; 20 C.F.R. § 416.927(c)(4) ("the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion"); see also Howard v. Comm'r of Soc. Sec., No. 3:14-cv-335, 2015 WL 7252553, at *5 (S.D. Ohio Nov. 17, 2015) Report and Recommendation adopted, 2015 WL 8014515 (S.D. Ohio Dec. 7, 2015) (reversing, in part, due to the ALJ's failure to note the consistency between the treating psychiatrist's opinion and opinions of a treating counselor and treating social worker). Notably, therapist Holloway opined that Plaintiff would miss work at least three times per month — as did Dr. Menendez — and experiences "marked" or "extreme"
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 mental health opinion of Plaintiff's long-time treating physician. 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.
Finally, Plaintiff contends that the ALJ improperly found her less than fully credible. Doc. 8 at PageID 1743-44. Finding remand warranted on other grounds, see supra, the undersigned makes no finding with regard to this alleged error. Instead, Plaintiff's credibility should be assessed by the ALJ anew on remand.
When the ALJ's non-disability determination is unsupported by substantial evidence, the Court must determine whether to remand the matter for rehearing or to award benefits. Generally, benefits may be awarded immediately "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 instance, evidence of disability is not overwhelming in light of conflicting opinions in the record concerning Plaintiff's functional limitations. Accordingly, the undersigned concludes that remand for further proceedings is necessary so the ALJ can reasonably and meaningfully weigh all opinion evidence, assess Plaintiff's credibility, and determine Plaintiff's disability status anew.
3. This case be
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
