SHARON L. OVINGTON, Chief Magistrate Judge.
The Social Security Administration has determined that Plaintiff Bige Mullins is eligible for Disability Insurance Benefits and Supplemental Security Income because he was under a disability beginning on November 9, 2006. His disability began then because peripheral vascular disease in his right lower leg had become markedly worse. When this problem combined with his already existing left-leg amputation (below his knee), he could no longer walk or stand for sufficient periods of time to perform a significant paid job. (Tr. 26-27).
This did not fully resolve Plaintiff's applications. He also asserted that he had been under a disability starting on July 25, 2002 due to a stroke and resulting health problems he suffered at that time. (Tr. 124). A Social Security Administrative Law Judge — Amelia G. Lombardo — concluded that Plaintiff was not under a disability and, thus, not eligible for benefits from July 25, 2006 to November 9, 2006.
Plaintiff contends that ALJ Lombardo's partial non-disability determination was based on her flawed evaluation of the medical source opinions of record. He also asserts that the record otherwise lacks substantial evidence supporting ALJ Lombardo's partial non-disability decision. He asks this Court to reverse the ALJ's decision and remand this matter to the Social Security Administration for payment of benefits due to the existence of his benefits-qualifying disability before November 9, 2006.
The Commissioner argues that ALJ Lombardo's decision should be affirmed as it is supported by substantial evidence.
The case is before the Court upon Plaintiff's Statement of Errors (Doc. #6), the Commissioner's Memorandum in Opposition (Doc. #9), Plaintiff's Reply (Doc. #10), the administrative record, and the record as a whole.
This Court has jurisdiction to review ALJ Lombardo's decision. 42 U.S.C. §§ 405(g), 1383(c)(3).
To be eligible for Disability Insurance Benefits or Supplemental Security Income a claimant must (among other requirements) be under a "disability" within the definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). "Disability" is defined essentially the same for both types of benefits. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). A "disability" consists only of physical or mental impairments that are both "medically determinable" and severe enough to prevent the applicant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies.
When Plaintiff was an infant, a blood clot in his leg caused him to have a left-leg amputation below his knee. (Tr. 323). He later developed serious health problems including, in part, a stroke in 2002 caused by stenosis (narrowing) of his carotid arteries. (Tr. 124). He maintains, "As a result of the stroke, he has numerous emotional difficulties and physical limitations." Id.
Plaintiff graduated from high-school and worked for years mainly as a mason. (Tr. 216, 179).
In October 2002, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income. Before reaching this Court, Plaintiff's applications went through several rounds of administrative decisions. These began in 2006 when ALJ Melvin A. Padilla issued a decision (Tr. 47-65) finding that Plaintiff had the severe impairments of "carotid artery disease, residuals of bilateral endarterectomy procedures, residuals of an old prior cerebrovascular accident, a mild cognitive disorder, depression, and a history of substance abuse in alleged remission." (Tr. 54). ALJ Padilla further concluded that with certain limitations, Plaintiff could perform medium work or, in other words, he could lift up to 50 pounds at a time and could frequently lift or carry objects weighing up to 25 pounds. See Tr. 63; see also 20 C.F.R. §§ 404.1567(c), 416.967(c). This and other findings led ALJ Padilla to conclude that Plaintiff was not under a benefits-qualifying disability on or after July 25, 2002. (Tr. 63-65).
Next, the Social Security Administration's Appeals Council vacated ALJ Padilla's decision on the ground that the administrative record lacked sufficient evidence concerning Plaintiff's mental impairments and resulting limitations. Consequently, the Appeals Council remanded the matter for further administrative proceedings. (Tr. 67-69).
On remand, the matter was assigned to ALJ Lombardo. After gathering additional evidence, ALJ Lombardo issued a decision in October 2008. (Tr. 74-88). She ultimately found that Plaintiff was under a benefits-qualifying disability beginning on November 9, 2006. Beginning on that date, according to ALJ Lombardo, Plaintiff could perform only sedentary work due to "peripheral cardiac disease [that] had markedly worsened" combined with the substantial compromise in his mobility due to "progress ischemic changes" in his right leg and the amputation of his lower-left leg. (Tr. 85-86). But, ALJ Lombardo also found that Plaintiff was not under a benefits-qualifying disability before November 9, 2006 mainly because he could perform medium work with specific limitations — again: work that involves lifting up to 50 pounds at a time with frequently lifting/carry up to 25 pounds. (Tr. 81-85).
The matter again proceeded to the Appeals Council. In October 2010, the Appeals Council recognized that ALJ Lombardo had not provided a rationale for her findings concerning Plaintiff's abilities "in the four functional areas used to determine the severity of mental impairments. ..." (Tr. 91). Given this, and another shortcoming in ALJ Lombardo's decision, id., and because the record was incomplete, the Appeals Council remanded the matter. The Appeals Council instructed the ALJ to further evaluate Plaintiff's mental impairments as required by the Regulations and provide "specific findings and appropriate rationale for each of the functional areas described in 20 CFR 404.1520a(c) and 416.920a(c)." (Tr. 92). The Appeals Council also instructed the ALJ to obtain evidence from a "medical expert [cardiologist] to clarify what work-related limitations the claimant would have had from the peripheral artery disease prior to November 9, 2006." (Tr. 92).
On remand, ALJ Lombardo held a hearing and, in October 2011, issued a partial non-disability decision, which the Appeals Council later declined to review. Believing that he was under a disability starting on July 25, 2002, Plaintiff filed the present case seeking to reverse ALJ Lombardo's partial non-disability determination in October 2011.
ALJ Lombardo's October 2011 decision evaluated Plaintiff's disability status under the five-step sequential evaluation procedure required by Social Security Regulations. See Tr. 13-29; see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);
At Steps one and two, ALJ Lombardo determined that (1) Plaintiff had not engaged in substantial gainful activity after July 25, 2002; (2) he had severe impairments — specifically, "residuals of carotid artery disease and a cerebral vascular accident with associated bilateral endarterectomies, peripheral vascular disease, residuals of the remote prior amputation of his left leg and corresponding use of a prosthesis, and cognitive disorder NOS, alcohol abuse and depression." (Tr. 16). At Step three, ALJ Lombardo found no Listing-level impairment that would have qualified Plaintiff for benefits. (Tr. 17-21; see Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1).
Reaching Step four of the sequential evaluation, ALJ Lombardo assessed Plaintiff's ability to perform work-related tasks despite his impairments — his Residual Functional Capacity. See 20 C.F.R. §§ 404.1520(a)(iv), 404.1545. She determined that before November 9, 2006, Plaintiff had the Residual Functional Capacity to perform a limited range of medium work with the following exceptions:
(Tr. 21). ALJ Lombardo then found that before November 9, 2006, Plaintiff could not perform his past relevant work. (Tr. 27). And the ALJ recognized that Plaintiff's age placed him in the category of an individual closely approaching advanced age (50-54 years old), id.; see 20 C.F.R. §404.1563(d).
At Step five of the sequential evaluation, ALJ Lombardo found that given Plaintiff's Residual Functional Capacity, his age, and other pertinent factors, thousands of jobs existed before November 9, 2006 that he could have performed. (Tr. 27-28). This led, in the end, to ALJ Lombardo's conclusion that Plaintiff was not under a benefits-qualifying disability before November 9, 2006. (Tr. 29).
The Social Security Administration's determination of disability — frequently embodied in an ALJ's written decision — is subject to review in this Court along two lines: "whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence." Blakley v. Comm'r of Social Sec., 581 F.3d 399, 405 (6th Cir. 2009); see Bowen v. Comm'r of Social Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Reviewing the ALJ's legal criteria for correctness may result in reversal even if the record contains substantial evidence supporting the ALJ's factual findings. Rabbers v. Comm'r of Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
The substantial-evidence review does not ask whether the Court agrees or disagrees with the ALJ's factual findings or whether the administrative record contains evidence contrary to those factual findings. Rogers v. Comm'r of Social Sec., 486 F.3d 234, 241 (6th Cir. 2007); see Her v. Comm'r of Social. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead, the ALJ's factual findings are upheld if the substantial-evidence standard is met — that is, "if a `reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Blakley, 581 F.3d at 406 (quoting Warner v. Comm'r of Social Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance ..." Rogers, 486 F.3d at 241.
The parties' contentions initially center on the ALJ's evaluation of the medical source opinions concerning Plaintiff's mental residual functional capacity before November 9, 2006. The opinions were provided by one consulting psychologist, Dr. Flexman; two examining psychologists, Drs. Jones and Halmi; and an examining neurosurgeon, Dr. Smith. The record does not contain an opinion from a treating mental-health source.
"As a general matter, an opinion from a medical source who has examined a claimant is given more weight than that from a source who has not performed an examination (a `nonexamining source'), and an opinion from a medical source who regularly treats the claimant (a `treating source') is afforded more weight than that from a source who has examined the claimant but does not have an ongoing treatment relationship (a `nontreating source'). ..." Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013) (internal citations omitted). "In other words, `[t]he regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.'" Id., (quoting, in part, Social Sec. Ruling No. 96-6p, 1996 WL 374180 at *2 (eff. July 2, 1996)).
When weighing an opinion provided by a non-treating physician or psychologist, the ALJ must consider whether or not the opinion was based on an examination of the claimant and must consider a number of other factors set forth in the Commissioner's Regulations — specifically, specialization, consistency, supportability, and other factors "which tend to support or contradict the opinion." 20 C.F.R. § 404.1527(d)(2)-(6); see Gayheart, 710 F.3d at 376. The Regulations appear to emphasize this requirement by reiterating it no less than three times. See 20 C.F.R. § 404.1527(d); see also 20 C.F.R. § 404.1527(f)(ii); 20 C.F.R. § 404.1527(f)(iii); Social Sec. Ruling 96-6p, 1996 WL 374180 at *2.
The focal point here is on ALJ Lombardo's decision that Plaintiff's mental work abilities were limited to "low-stress, unskilled, simple, repetitive tasks which did not require extended periods of concentration, direct interpersonal contact with members of the general public, fast-paced work, [or] production quotas." (Tr. 21).
ALJ Lombardo based these findings on a "narrative" report that consulting psychologist Dr. Flexman sent to neurologist Dr. Wamsley on November 10, 2004. (Tr. 23, 440-43). Dr. Flexman's narrative report, in the ALJ's view, "references only moderate level restrictions." (Tr. 23).
The ALJ declined to give significant weight to Dr. Flexman's responses in a supplemental questionnaire on November 23, 2010. (Tr. 23-24, 444-47). The ALJ also declined to credit the opinions of one-time examining psychologists Dr. Jones and Dr. Halmi, and one-time examining neurosurgeon Dr. Smith. (Tr. 24-25; 453-62; 508-14; 515-24).
Dr. Flexman performed a consultative examination in the Fall of 2004, involving an interview of Plaintiff, cognitive and affective testing, and an evaluation. (Tr. 440-43). In his November 10, 2004 "narrative" report to Plaintiff's neurologist Dr. Wamsley, Dr. Flexman opined:
(Tr. 442).
The ALJ observed that Dr. Flexman's narrative report "references at most only moderate level restrictions." (Tr. 23). She then explained:
(Tr. 23 (quoting, in part, Dr. Flexman, Tr. 441-42)).
In contrast, the ALJ did not credit the opinions Dr. Flexman expressed in the supplemental questionnaire on November 23, 2002. (Tr. 444-47). Dr. Flexman opined that Plaintiff was severely limited in his ability to perform work (40 hours per week) that involved frequent contact with others; performance of complex tasks; independent performance of routine repetitive tasks; performance of varied tasks; achieving goals and responding to time limits; and exercising acceptable judgment, tolerating stress, and maintaining production standards. (Tr. 445-46). Dr. Flexman also believed that Plaintiff had "moderately-severe" limitations in many others areas of mental-work abilities. Id.
The ALJ explained her rejection of these opinions:
(Tr. 23) (internal citation omitted).
The ALJ erred by rejecting Dr. Flexman's opinions about Plaintiff's mental-work abilities merely because the opinions appear in his responses to the supplemental questionnaire submitted to him by his counsel. The ALJ did not point to any evidence in the record tending to show that Dr. Flexman's opinions were unduly influenced by the fact that Plaintiff's counsel sent the supplemental questionnaire to him. Dr. Flexman's opinions instead tend to show that he grounded his opinions on Plaintiff's cognitive disorder and poor prognosis. Dr. Flexman further noted that Plaintiff's "age & educational background would indicate minimal gains with therapy." (Tr. 446).
The regulatory factors applicable to the ALJ's evaluation of Dr. Flexman's opinions, 20 C.F.R. §§ 404.1527(3)-(6), do not specifically permit the ALJ to discount or reject a medical source's opinions solely because Plaintiff's counsel asked for them. This is administratively wise. If the Regulations permitted ALJs to reject medical-source opinions based solely on who asked — or paid — for them (a plaintiff or the Commissioner), the Regulations would frequently deprive the Commissioner of the assistance provided by state-agency medical sources and other program physicians and psychiatrists. This would not sit well with the Social Security Administration because it considers these medical sources to be "highly qualified physicians and psychologists who are experts in the evaluation of medical issues in disability claims. ..." Social Sec. Ruling 96-6P, 1996 WL 374180 at *2 (July 2, 1996). Although a medical source's understanding of Social Security Regulations is a proper factor to consider, see 20 C.F.R. § 404.1527(d)(6), the Regulations stop short of requiring or allowing ALJs to either discount or credit a medical source's opinions based on which party asked for the opinions. Instead, the Regulations carefully delineate other factors pertinent to the ALJ's evaluation, reiterating three times the requirement that those factors apply to the evaluation of non-treating medical sources. See 20 C.F.R. § 404.1527(d) ("we consider all of the following factors in deciding the weight to give any medical opinion ..."); see also 20 C.F.R. § 404.1527(f)(ii) (factors apply to opinions of state agency consultants or other program physicians); 20 C.F.R. § 404.1527(f)(iii) (same as to medical experts' opinions); Social Sec. Ruling 96-6p, 1996 WL 374180 at *2 (same).
The Commissioner maintains that the ALJ properly rejected Dr. Flexman's opinions in the supplemental questionnaire as inconsistent with the narrative report he prepared for the purpose of treating Plaintiff. Although "consistency" is a factor to consider under the Regulations, see 20 C.F.R. §404.1527(d)(3), the ALJ ignored or overlooked that Dr. Flexman's narrative report did not assess Plaintiff's vocational abilities. The narrative report instead described Plaintiff's mental health from a medical/psychological standpoint, without exploring what work abilities or limits he had due to mental-health issues and without connecting the phrase "`moderate' cognitive impairment" in terms of Plaintiff's particular vocational abilities or limits. See Tr. 440-43.
In contrast, the supplemental questionnaire presented Dr. Flexman with the option to choose from a list of specifically defined terms to assess Plaintiff's mental-work abilities. The questionnaire defined "moderate" to mean, "An impairment of slight importance which does not affect ability to function"; "moderately-severe" meaning [a]n impairment which significantly limits mental capacity to perform basic work related functions"; or "severe" meaning "[e]xtreme impairment of ability to function." (Tr. 444). When presented with these definitions, Dr. Flexman's choices of "severe" or "moderately severe" rather than "moderate" when assessing Plaintiff's vocational abilities were not inconsistent with the limitations he identified in his narrative report. For instance, Dr. Flexman stated in his narrative report:
(Tr. 442). Dr. Flexman did find that Plaintiff had "minor difficulties in his ability to shift cognitive sets from one thought to another." Id. But he also reported that Plaintiff had "difficulty learning new information across a series of tasks," and "his ability to recall the designs was quite poor [on the Bender-Berea Visual-Motor Gestalt Test]." Id. Such information tends to be consistent with Dr. Flexman's assessment of Plaintiff's mental work limitations as "moderately severe" or "severe." Given such consistency, the ALJ erred by crediting some of Dr. Flexman's opinions (i.e., "`moderate' cognitive impairments) without considering or addressing information in the narrative report that was consistent with Dr. Flexman's later-expressed opinions about Plaintiff's specific vocational limits. Cf. 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."); cf. also Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984); Kuleszo v. Barnhart, 232 F.Supp.2d 44, 57 (S.D.N.Y. 2002). This also denotes a lack of substantial evidence supporting the ALJ's evaluation of Dr. Flexman's opinions. "[S]ubstantiality of evidence evaluation does not permit a selective reading of the record. Substantiality of the evidence must be based upon the record taken as a whole. Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight.'" Brooks v. Comm'r of Social Sec., 531 Fed. App'x 636, 641 (6th Cir. 2013) (quoting, in part, Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)).
The ALJ, moreover, committed this same error — only on a broader canvas — by not recognizing that Dr. Flexman's opinions were consistent with those provided by other examining medical specialists — Drs. Jones, Halmi, and Smith. This may not have been error if the ALJ properly and reasonably evaluated — i.e., applied the correct legal criteria resulting in findings supported by substantial evidence — these three medical sources' opinions. The analysis thus turns to the ALJ's review of these opinions, beginning with Dr. Jones.
In May 2005, Psychologist Dr. Jones examined and evaluated Plaintiff for the Ohio Bureau of Disability Determinations. (Tr. 453-62). She diagnosed Plaintiff with Cognitive Disorder NOS (not otherwise specified) and Depressive Disorder NOS. (Tr. 458). She assessed his GAF at 50,
The ALJ rejected Dr. Jones's opinions. She observed that Dr. Jones described "extreme restrictions" that were inconsistent with her (Dr. Jones's) own estimate of Plaintiff's GAF because a GAF of 50 "is indicative of only moderate level psychological symptoms. ..." (Tr. 24). This is incorrect. A GAF of 50 indicates "serious symptoms ... or any serious impairment in social, occupational, or school functioning. ..." DSM-IV-TR, at p. 34. Such serious symptoms or impairments are not inconsistent with Dr. Jones's opinions concerning Plaintiff's mental-work limitations.
The ALJ also rejected Dr. Jones's conclusion that Plaintiff had "extremely poor memory and cognitive skills." (Tr. 24). The ALJ found this conclusion unsupported by Dr. Jones's own findings and were based on "her subjective impressions during her short interview" rather than memory or other test results. Id. But, Dr. Jones's findings were supported by her assessment of Plaintiff's GAF at 50 and by her clinical observations that were within her area of expertise to make. Dr. Jones, for example, observed that Plaintiff "presented with a blunted affect and maintained little eye contact. Confusion, aphasia,
Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (citations omitted).
In addition, as with Dr. Flexman, the ALJ ignored or overlooked significant information in Dr. Jones's report that supported her opinions. For example, Dr. Jones administered the MMPI-2 "to assess general personality adjustment. The resulting profile proved valid." (Tr. 456). Dr. Jones recognized, "Serious problems are being admitted, while mainly problems ... are being denied." Id. Dr. Jones observed that Plaintiff was presenting himself "in many ways in an improbably favorable light." Id. Plaintiff's MMPI-2 results also describe someone for whom "[e]xcessive use of defense mechanisms is typical. The primary defenses are repression and denial. Projection and rationalization can be present. When difficulties are acknowledged, blame is often placed on others. ... Feelings of insecurity are likely. Insight is probably minimal." (Tr. 456). Dr. Jones further noted, "The likelihood is in favor of: poor judgment, confused thoughts, difficulty thinking logically, [and] strange beliefs . ..." (Tr. 456-57). Although these test results generally describe the traits a person with Plaintiff's MMPI-2 might have, they did play a role in Dr. Jones's analysis and are supportive of her opinions about Plaintiff's mental health and work abilities.
Accordingly, Plaintiff's challenges to the ALJ's evaluation of Dr. Jones's opinions are well taken.
Because the ALJ rejected Dr. Flexman's and Dr. Jones's opinions about Plaintiff's mental work abilities, she failed to recognize that these medical-source opinions were largely consistent with, and supportive of, each other. Indeed, the record does not contain a medical-source opinion contrary to those provided by Drs. Flexman and Jones. Their opinions, moreover, were consistent with other evidence. In November 2002, treating neurologist Dr. Valle observed that Plaintiff had a "very flat affect" and lacked insight. (Tr. 420). In July 2004, treating neurologist Dr. Wamsley reported that Plaintiff had mistakenly stated he had a stroke eight months ago, when it was two years ago. Dr. Wamsley thought Plaintiff's memory problems could be due to his stroke or early dementia. In August 2004 Dr. Wamsley reported that Plaintiff was an "extremely poor historian," and in September 2004, Dr. Wamsley had a "difficult time understanding and communicating" with Plaintiff. (Tr. 433-36).
In October 2004, a speech therapist noted that Plaintiff had expressive aphasia, as well as "obvious" and "severe" memory problems. (Tr. 452). In an October 2002 interview, a State agency disability worker reported that Plaintiff appeared to think slowly and not understand all of the questions. (Tr. 227). In February 2003, a State agency interviewer observed that Plaintiff walked slowly, hesitated before dating forms, often asked for a reminder of the date, and stopped to "think a few minutes" before answering questions. (Tr. 251-52).
It should be noted that the two remaining mental-health evaluators, Drs. Halmi and Smith, provided opinions about Plaintiff's mental-work abilities that were similar to Drs. Flexman and Jones. Although the ALJ rejected their opinions and Plaintiff challenges the ALJ's rejection, there is no need to address Plaintiff's challenges because of the above-discussed errors and the absence of a medical-source opinion contrary to those provided by Drs. Flexman and Jones.
For all the above reasons, Plaintiff's challenges to the ALJ's review of the opinions provided by Dr. Flexman and Dr. Jones are well taken.
If the ALJ failed to apply the correct legal standards or her factual conclusions are not supported by substantial evidence, the Court must decide whether to remand the case for further proceedings or to reverse and order an award of benefits. 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). Remand is appropriate if the Commissioner applied an erroneous principle of law, failed to consider certain evidence, failed to consider the combined effect of impairments, or failed to make a credibility finding. Faucher v. Sec'y of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994).
A reversal of the ALJ's decision and a judicial award of benefits is warranted in the present case due to the errors identified previously and because the evidence of Plaintiff's mental disability beginning on July 25, 2002, on or near the date of his stroke, is either overwhelming or strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. The strong evidence includes the consistent opinions about Plaintiff's mental-work abilities and limitations provided by his consulting psychologist Dr. Flexman and examining psychologist Dr. Jones. In addition, assuming the ALJ properly discounted the opinions of Dr. Halmi, the ALJ still placed some weight — albeit "only minimal weight" — on his opinions. (Tr. 24). Placing "only minimal weight" on Dr. Halmi's opinion is not tantamount to wholesale rejection of his opinions. Because of this, Dr. Halmi's opinions constitute some evidence — albeit with minimal weight — that is consistent with the opinions provided by Drs. Flexman and Jones. As to potential contrary evidence, the record lacks a treating medical-source opinion contrary to the opinions provided by Drs. Flexman, Jones, and Smith. (Neurosurgeon Dr. Smith's opinions, although rejected by the ALJ, were not contrary to those of Drs. Flexman, Jones, and Smith.)
Lastly, ALJ Lombardo based her Step-three conclusion — i.e., that Plaintiff's mental impairments did not satisfy Listing 12.04A ("Organic Mental Disorders") — on the testimony of Dr. Buban at the October 25, 2005 administrative hearing. (Tr. 19). The ALJ explained, "after a thorough review of the psychological evidence, [Dr. Buban] concluded that the claimant experienced no more than a moderate impairment in any functional area. She also noted the possibility of malingering and no more than mild-to-moderate cognitive impairment and depressive symptoms." Id.
Several problems arise here. First, the transcript of the October 25, 2005 hearing is not in the administrative record, apparently because it could not be located, as the Appeals Council reported. (Tr. 91). Without a transcript of Dr. Buban's testimony, there is no way to determine if ALJ Lombardo's reliance on it was supported by substantial evidence. This leads to the second problem in the ALJ's decision: It appears that the ALJ's description of Dr. Buban's testimony may have been partially inaccurate on the issue of Plaintiff's "mild-to-moderate cognitive ability." (Tr. 19). The possible inaccuracy arises due to the Appeals Council's report about Dr. Buban's testimony. The Appeals Council noted:
(Tr. 19). If there were no records to provide a clear picture of Plaintiff's functioning, what substantial evidence supported ALJ Lombardo's acceptance of Dr. Buban's opinions or, for that matter, the ALJ's conclusion that Plaintiff had no more than mild-to-moderate cognitive functioning? (Tr. 19).
Perhaps most significantly, ALJ Lombardo did not evaluate Dr. Buban's testimony under any of the factors required by the Regulations. In fact, it was impossible for her to do so given that the administrative record does not contain the transcript of Dr. Buban's testimony. Nonetheless, this means that ALJ Lombardo did not apply the correct legal criteria to Dr. Buban's opinion about Plaintiff's "mild-to-moderate functioning." See 20 C.F.R. § 404.1527(d)(2)-(6); see also Gayheart, 710 F.3d at 376.
In sum, the overwhelming evidence, or strong evidence while contrary evidence is weak, establishes that Plaintiff's mental impairments meet or equal the criteria of Listing 12.04A and B. This is due to the particular limitations established by Dr. Flexman's opinions in response to the supplemental questionnaire, by Dr. Jones's opinions, and because Dr. Halmi's opinions are due some, albeit "minimal," weight. Plaintiff is therefore entitled to benefits before November 9, 2006 based on the disability onset date of July 25, 2002.
Accordingly, an Order remanding this case for benefits is warranted. See Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
