SHARON L. OVINGTON, Magistrate Judge.
The Social Security Administration provides Supplemental Security Income to individuals with a "disability" (among other eligibility requirements). Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). A "disability" in this context means "any medically determinable physical or mental impairment" that precludes an applicant from performing a significant paid job ("substantial gainful activity"). 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Plaintiff Nina Priestly applied for Supplemental Security Income in early April 2012. Since then, her application and evidence has been reviewed and found wanting by two Administrative Law Judges (ALJs) in three decisions. The most recent decision, by ALJ Gregory G. Kenyon, denied Plaintiff's application based on the conclusion that her medical impairments did not amount to a "disability" as defined in the Social Security Act. (Doc. #6, PageID #s 628-39).
Plaintiff brings the present case contending that ALJ Kenyon's decision his fraught with six errors:
(Doc. #7, PageID #1273).
The Commissioner finds no error in the ALJ's decision and contends that substantial evidence supports his evaluation of the medical evidence and Plaintiff's credibility.
Plaintiff was forty-seven years old when she applied (in April 2012) for Supplemental Security Income. She is therefore considered a "younger person" under social-security regulations. See 20 C.F.R. § 416.963(c). In mid-2015, she turned fifty years old and moved into the category of a "person approaching advanced age. See 20 C.F.R. § 416.963(d). Plaintiff's earned a high-school education, at a minimum.
Plaintiff testified during administrative hearings that she experienced bad depressive episodes generally two or three times per week. (Doc. #6, PageID #s 72, 675-76). But, her episodes of depression can last up to a week. She has a bad week once every couple of months. Id. During episodes of serious depression, she sleeps much of the day and is awake much of the night. Id. She isolates herself by not typically leaving her home during a bad episode of depression, and she "can't pull herself together enough to actually do" household activities. Id. at 72-73, 665, 675, 984-85. She will not take a shower or bath during her bad days and weeks. Even during some of her better weeks she is unable to muster the determination to shower or bathe. As a result, she might go months without showering or bathing. Id. at 675-76.
Plaintiff has difficulty with her energy levels. She explained, "Some days I just don't function. I just can't even handle getting up, sometimes. And other times I can handle getting up. But it's difficult to get out of ... clothes you wear at home that you do not wear out in public. Some days I just don't. I don't ..., do anything at all." Id. at 666-67. She spends most of a bad day sleeping. This occurs a couple of times a month. Id. at 667, 984. Activity or stress on one day can also significantly reduce her ability to function on the next day. Id. at 990. Sometimes Plaintiff's depressive episodes interfere with her sleep, resulting in her occasionally missing mental-health-treatment appointments. Id. at 73. Her missed appointments occasionally allow her prescriptions to lapse, briefly forcing her to go without her medications. Id. at 75. Her memory is also poor and she struggles to interact "in a socially acceptable way" for more than a brief period of time (four to six hours). Id. at 669, 674. She explained:
Id. at 674. Plaintiff has also occasionally struggled with suicidal thoughts. Id. at 667. She also picked at the skin on her arms or "other places." Id. at 667-68. She testified, "I suppose you could say I've been working at not doing that. Primarily, by doing things like knitting. As long as I can keep my hands busy with something else, I cannot rip at myself." Id. at 668.
Plaintiff's caseworker at Eastway Behavioral Healthcare, Ms. Donna Yount, testified during Plaintiff's 2013 administrative hearing. Id. at 81-86. She had been a caseworker at Eastway for over thirteen years. She held a state-issued "social worker assistant license." Id. at 81-82. She helped Plaintiff by coordinating her paperwork and handling administrative matters. In 2013, Ms. Yount had known Plaintiff for close to two years. Ms. Yount explained that Plaintiff saw a doctor at Eastway every two months, and Ms. Yount was scheduled to visit Plaintiff at her home once a month. Id. at 82-83. Plaintiff testified that Ms. Yount coordinates her appointments at Eastway and visits her home on a monthly basis as part of her mental health treatment. Id. at 79-80.
In discussing the assistance she provides to Plaintiff, Ms. Yount explained, "She has a lot of difficulty, she's very unmotivated about things, and I really have to encourage her a lot to get her to call places, like if she needs to see the doctor and she doesn't want to follow through, I'll have to help her do that as well." Id. at 84. Ms. Yount acknowledged that she did not provide Plaintiff with any medical treatment, "just mental health services like encouragement, coordination, linking the services, referring her, educating her." Id. at 83. Ms. Yount helped Plaintiff when she had difficulty with motivation for treatment. Ms. Yount described Plaintiff as "very unmotivated about things." Id. at 84. Ms. Yount would encourage Plaintiff a lot and help "get her to call places, like if she needs to see the doctor and she doesn't want to follow through...." Id.
Ms. Yount also testified that at times she would need to visit Plaintiff more than once a month:
Id. at 85.
Ms. Yount also testified during Plaintiff's 2016 hearing before ALJ Kenyon. Id. at 678-81. By that time, she had been working with Plaintiff for five to six years. Ms. Yount observed that Plaintiff gets depressed and unmotivated very easily. Id. at 679. She explained that she has needed to periodically check on Plaintiff in her home because she would stop answering phone calls and attending to daily chores during her depressive periods. Id. 680-81. Ms. Yount further described Plaintiff's difficulties: "It's hard for her to really complete tasks when she's depressed, and keeping up with her chores, and her housework stuff...." Id. at 680. Ms. Yount noted that Plaintiff's depressive episodes were probably happening more than once per month. Id.
As to the medical evidence, the ALJ discussed it in his decision, and the Commissioner relies on the ALJ's discussion. (Doc. #10, PageID #1294). Plaintiff has summarized and also discussed the medical evidence concerning Plaintiff's mental-health impairments and treatment. (Doc. #7, PageID #s 1267-72). Rather than repeat the ALJ's or Plaintiff's descriptions of the medical evidence, the Court will discuss the pertinent evidence in the course of this Report.
Review of ALJ Kenyon's most-recent decision considers whether he applied the correct legal standards and whether substantial evidence supports his findings. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance...." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); see Lawson v. Comm'r of Soc. Sec., 3:17cv119, 2018 WL 3301421, at *4 (S.D. Ohio 2018) (Ovington, M.J.), Report & Recommendations adopted, 2018 WL 3549787, at *1 (S.D. Ohio 2018) (Rice, D.J.).
The ALJ considered the evidence and evaluated Plaintiff's disability assertion under each of the five sequential steps set forth in the Social Security Regulations. See 20 C.F.R. § 416.920. His more pertinent findings began at steps two and three where he found that Plaintiff had severe impairments—hypertension; plantar fasciitis; morbid obesity; depression; and posttraumatic stress disorder—and that her impairments did not automatically qualify her for benefits. (Doc. #6, PageID #s 960-62).
At step four, the ALJ concluded that the most Plaintiff could do (her "residual functional capacity," see Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002)), consists of "medium work" with 10 specific limitations—for example, "(1) frequent crouching, crawling, kneeling, stooping, and climbing of ramps and stairs ...; (4) limited to performing unskilled, simple, repetitive tasks; (5) occasional contact with co-workers and supervisors; (6) no fast paced production work or jobs which involve strict production quotas; (7) limited to performing jobs in which there is little, if any, change in the job duties or the work routine from one day to the next." Id. at 962. The ALJ's assessment of Plaintiff's residual capacity led him to conclude that Plaintiff could not perform her past relevant work. Id. at 965.
The ALJ found at step five that Plaintiff retained the ability to perform a significant number of jobs that exist in the national economy. These main findings led the ALJ to ultimately conclude that Plaintiff was not under a benefits-qualifying disability. Id. at 966-67.
ALJ Kenyon's most recent decision resulted from the parties' agreement to remand Plaintiff's previous case in this Court. On remand, the Appeals Council vacated ALJ Kenyon's earlier decision and identified several problems:
Id. at 1013 (footnote added).
On remand, ALJ Kenyon considered Ms. Yount's testimony in only two sentences. He wrote:
Id. at 963 (citing Exhibits 6F, 9F, 14F, 16F, 22F, 24F, 29F, and 30F; Social Security Rulings 92-2p and 92-5p). This paucity of analysis is insufficient to justify ALJ Kenyon's assignment of only little weight to Ms. Yount's testimony. By simply rewording—without substantive change—the same reasons he had previously given for placing little weight on Ms. Yount's testimony, the ALJ essentially overlooked or ignored the Appeals Council's reasoning. The ALJ appears, moreover, to have given Ms. Yount's testimony less consideration than he did in his first decision. Compare Doc. #6, PageID #s 963 with 637. Yet even if the ALJ considered Ms. Yount's testimony more carefully than he had before, his reasons for giving Ms. Yount's testimony little weight are again inadequate. As one reason to reject Ms. Yount's testimony, the ALJ repeated his previous observation that Ms. Yount is "is not a mental health professional...." Id. at 963. This represents the same problem the Appeals Council found: neglecting "Soc. Sec. R. 06-03p, which indicates that such sources [i.e., Ms. Yount] may be valuable given the close contact and personal knowledge they often have with respect to the claimant." Id. at 1013. It is also concerning that ALJ Kenyon cited Soc. Sec. R. 92-2p and 92-5p because it appears that these Rulings did not exist—then or now. Perhaps these were typographical miscues. Maybe the ALJ meant to refer to more frequently cited Rulings, such as Rulings 96-2p (discussing how to evaluate treating-source opinions for controlling weight) or 96-5p (discussing medical source on issues reserved to the Commissioner). Yet, why would he cite these Rulings? Neither has anything to do with Ms. Yount's testimony. She is not a treating source and did not express any opinion on an issue reserved to the Commissioner. Still, if these are mere typographical blunders, resulting incorrect citations do not inspire confidence in the ALJ's review of Ms. Yount's testimony.
ALJ Kenyon also repeats the other error that the Appeals Council identified. He did not support his re-assessment of Ms. Yount's testimony with "any specific citations or references." Id. at 1013. Rather than provide such citations, ALJ Kenyon summarily refers to every single exhibit in the record that contains treatment notes from Eastway. See id. at 963 (citing Exhibits 6F, 9F, 14F, 16F, 22F, 24F, 29F, and 30F). This exaggerated inclusiveness fails to meaningfully or reasonably link the evidence to ALJ Kenyon's conclusion that the entirety of Ms. Yount's testimony (during two different administrative hearings) deserves little weight. See Dalton v. Berryhill, No. 3:16-CV-57, 2017 WL 766908, at *2 (S.D. Ohio Feb. 27, 2017) (Rice, D.J.) (citing Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009)) ("[t]he ALJ is not required to discuss every piece of evidence, but must build a logical bridge from evidence to conclusion."); see also Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014) (The ALJ errs by failing to create a "logical bridge" between the evidence cited and conclusions drawn). Additionally, the ALJ's general citations to Exhibits suggests that he found all the information in these Exhibits did not support Ms. Yount's testimony. (Doc. #6, PageID #963). Substantial evidence does not support this view because these records reveal Plaintiff's struggles with mental-health issues overtime and demonstrate consistency between Ms. Yount's testimony, her observations of Plaintiff over time (seen in her treatment records), Plaintiff's psychiatric and pharmacological assessments, and Plaintiff's testimony. See id., e.g., 442, 445-48, 455-56, 458, 520, 856, 877-79, 881-82. And the Appeals Council itself references Plaintiff's mental-exam findings and diagnoses as suggestive of greater functional limitations than ALJ Kenyon recognized in his previous non-disability decision. Id. at 1014.
Plaintiff next argues that the ALJ erred when evaluating one-time examining psychologist Donald J. Kramer's opinions.
At the request of the state agency, Dr. Kramer examined and evaluated Plaintiff in July 2012. He based the information in his report on an undated outpatient evaluation, Plaintiff's self-report, and "the clinical impression..." he obtained during Plaintiff's interview. (Doc. #6, PageID #386). Dr. Kramer indicated that Plaintiff "appears to be a reliable information.... [H]er self-report appears to be consistent with her past history of psychiatric treatment." Id. at 390. Dr. Kramer explained, "She does report a history of abuse, mainly sexual and physical abuse from her father.... [She] reports that she has had problems with depression all of her life and that her current depression became worse in 2003 following her stroke...." Id. at 387.
Dr. Kramer diagnosed Plaintiff with depressive disorder not otherwise specified. Id. at 390. He observed that Plaintiff's "affect was basically normal with no acute emotional distress noted. She was spontaneous and quite verbal in today's examination but despite her good verbal expressive skills, she still tended to be a little vague, especially in terms of describing her symptoms of depression and their impact upon her functioning.... Overall the claimant describes significant episodes of depression which she believes would impact upon her work attendance, although she displayed no acute emotional distress in the interview itself." Id. at 388. Dr. Kramer opined that Plaintiff "may have some problems with persistence and pace during her depressive episodes.... [and] she does indicate that during her depressive episodes she withdraws and tends to keep to herself and is more emotional and tearful...." Id. at 391. Dr. Kramer noted, "she seems to have some problems maintaining appropriate work functioning over extended periods of time because of her episodes of depression...." Id.
The ALJ placed "limited weight" on Dr. Kramer's report, explaining:
Id. at 963.
There are multiple errors in the ALJ's review of Dr. Kramer's report. The errors begin with the exact error previously identified by the Appeals Council, a discussed above: a neglect to cite any specific records or evidence in support of his opinion weighing. See id. at 1013. While ALJ Kenyon's weighing of Dr. Kramer's opinions contains citations, they are non-specific and summarily reference every medical exhibit that documents Plaintiff's mental-health treatment. Id. at 963. The ALJ's citations illustrate the same neglect of the contents of those records discussed above with respect to the ALJ's weighing of Ms. Yount's testimony. It is also inconsistent with the Appeals Council's own summation of the contents of the cited exhibits. See id. at 1014.
ALJ Kenyon's weighing of Dr. Kramer's opinions contains additional problems. His statement that Plaintiff's "symptoms are of only mild to perhaps moderate level severity" during her depressive episodes and are otherwise insufficiently "debilitating" or frequent to support Dr. Kramer's opinions is both unexplained and without apparent evidentiary basis. See id. at 963. ALJ Kenyon also erred in referring to Plaintiff's presentation before and cooperation with Dr. Kramer as a basis for rejecting the examining psychologist's opinions. Id. at 963. ALJ Kenyon was not permitted to supplant his own interpretation and analysis of Dr. Kramer's observations for that of Dr. Kramer himself. Cf. Simpson v. Comm. of Soc. Sec., 344 F. App'x 181, 194 (6th Cir. 2009) (citing, in part, Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) ("ALJs must not succumb to the temptation to play doctor and make their own independent medical findings[.]")).
Perhaps more significantly, a claimant's ability to be cooperative or otherwise pleasant during a psychological examination is not evidence adverse to the presence of disabling limitations. The relevant inquiry explores a disability claimant's ability to maintain functioning on a sustained basis, not during a singular examination. See Vaughn v. Comm'r of Soc. Sec., 3:13-cv-122 *17, 2014 WL 683307, at *8 (S.D. Ohio 2014) (citing Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 378 (6th Cir. 2013). This is particularly salient here as Plaintiff's allegations of disability center upon a significant ebb and flow of her depressive episodes, meaning that it would be unreasonable to expect her severe depression to visibly manifest during every treatment encounter or examination. And the ALJ ignored or overlooked Dr. Kramer's report that Plaintiff "appears to be a reliable informant...." (Doc. #6, PageID #390). When discussing Plaintiff's reliability, moreover, Dr. Kramer recognized that she was "open and honest in sharing information..." Id. Although Dr. Kramer found that Plaintiff's self-report did not match up with the symptoms she presented during his examination, "her self-report appears to be consistent with her past history of psychiatric treatment." Id. It was error for the ALJ to overlook this aspect of Dr. Kramer's report. See Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 641 (6th Cir. 2013) ("[A] substantiality of evidence evaluation does not permit a selective reading of the record."); see also Minor v. Comm'r of Soc. Sec., 513 F. App'x 417, 435 (6th Cir. 2013) (reversing where the ALJ "cherry-picked select portions of the record" rather than doing a proper analysis); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) ("ALJ must consider all the record evidence and cannot `pick and choose' only the evidence that supports his position.").
Turning to another problem, ALJ Kenyon goes well beyond the evidence of record in stating that Plaintiff's social isolation and inactivity born of her depressive disorder "appears to be a matter of preference." Id. at 963. He cites no medical evidence or other evidence of record that suggest Plaintiff chose—rather than depression caused her—to stay in bed or otherwise isolate herself. The record, including Dr. Kramer's report, leans in the opposite direction, gravitating towards the conclusion that Plaintiff struggled with depression for years until she could no longer hold it at bay without mental-health treatment. See id. at 388; see also 442, 445-48, 455-56, 458, 520, 856, 877-79, 881-82. And depression commonly manifests itself in social isolation. E.g., http://www.webmd.com/depression/features/depression-traps-and-pitfalls#1 ("Avoiding social contact is a common pattern you might notice when falling into depression. Some people skip activities they normally enjoy and isolate themselves from the world. Others turn to alcohol or junk food to mask their pain and unhappiness."). To put it cavalierly—as the ALJ does—that Plaintiff "may have days when she elects to stay in bed, but this appears to be [a] matter of preference," id. at 963, is cynicism based on a poor understanding of depression and is not a reasonable understanding of Dr. Kramer's acceptance of Plaintiff being "open and honest in sharing information." Id. at 390.
Plaintiff also argues that the ALJ's assessment of her residual functional capacity was unreasonable because he found Plaintiff had less mental-health restrictions than he had previously identified in 2016. Specifically, ALJ Kenyon's 2016 assessment of Plaintiff's residual functional capacity found her unable to do a job with any public contact whereas his more recent finding indicates that she can directly interact with the public for up to one third of every eight-hour workday. Compare id. at 634 with id. at 962. Similarly, the ALJ's previous appraisal of Plaintiff's residual functional capacity precluded driving, teamwork, tandem tasks, and over-the-shoulder supervision; his more recent appraisal contained none of these limitations. Id. The ALJ made these changes despite the Appeals Council's admonishment: "The hearing decision does not contain a thorough assessment of the claimant's mental impairments and limitations. The record reveals that the claimant may have greater functional limitations than the decision determined, as evidenced by mental exam findings and diagnoses during the relevant period." Id. at 1013-14 (emphasis added) (citations omitted).
True, the Appeals Council did not mandate ALJ Kenyon to find that Plaintiff had greater mental-work limitations. But his decision to find Plaintiff less limited (more able to work) than he had previously found her suggests a foreordained, rather than evidence-based, non-disability decision. Regardless, it was unreasonable for the ALJ to find Plaintiff able to interact directly with the public for up to a third of every eight-hour workday, when Dr. Kramer's report gives credence to her self-reported tendency "to isolate herself during period[s] of depression."
Accordingly, for the above reasons, Plaintiff's Statement of Errors is well taken.
A remand is appropriate when the ALJ's decision is unsupported by substantial evidence or when the ALJ failed to follow the Administration's own regulations and that shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to provide "good reasons" for rejecting a treating medical source's opinions, see Wilson, 378 F.3d at 545-47; failed to consider certain evidence, such as a treating source's opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the plaintiff's impairments, see Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 725-26 (6th Cir. 2014); or failed to provide specific reasons supported by substantial evidence for finding the plaintiff lacks credibility, see Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand under sentence 4 may result in the need for further proceedings or an immediate award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or where the evidence of disability is strong while contrary evidence is lacking. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
This is an unusual case considering its age—more than 7 years old—and the fact that a remand for further proceedings would require a fourth decision by an Administrative Law Judge (unless the Appeals Council remanded for benefits). In these circumstances and given the strong evidence of disability while contrary evidence is lacking, there is no just reason to further delay this matter for even more administrative proceedings. See Gentry, 741 F.3d at 730 (remanding for benefits after 2 remands and 3 administrative hearings and finding, "In light of the extensive opinions of treating physicians as to the severity of Gentry's psoriasis and psoriatic arthritis, we conclude that substantial evidence on the record as a whole supports a finding of total disability."); see also Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) ("Allowing the Commissioner to decide the issue again would create an unfair `heads we win; tails, let's play again' system of disability benefits adjudication." (other citation omitted)); Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998) ("Given the obduracy evidenced by the action of the administrative agency on remand, we remand the case to the agency with directions that the application for benefits be granted."); Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992) ("Because of the medical record, we think it unconscionable to remand this eight year old case to the Secretary for further review.").
