ALETA A. TRAUGER, District Judge.
Before the court is plaintiff Frederick Lynn Born's Motion for Judgment on the Administrative Record ("Motion") (Docket No. 13), filed with a Memorandum in Support (Docket No. 14). Defendant Commissioner of Social Security ("Commissioner") filed a Response in Opposition to plaintiff's Motion. (Docket No. 15.) On January 13, 2017, this case was referred to a magistrate judge. (Docket No. 17.)
To avoid further delay in the resolution of this matter, the court will vacate that referral. Upon consideration of the parties' filings and the transcript of the administrative record (Docket No. 11),
Born filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and for Supplemental Security Income ("SSI") under Title XVI of the Act on February 2, 2012, alleging a disability onset date of December 31, 2010. (Tr. 26.) Born's claim was denied at the initial and reconsideration stages of state agency review. Born subsequently requested de novo review of his case by an Administrative Law Judge ("ALJ"). The ALJ conducted a hearing on December 3, 2013, at which Born appeared with a non-attorney representative and gave testimony. (Tr. 43-76.) An impartial vocational expert ("VE") also testified. At the conclusion of the hearing, the matter was taken under advisement until March 26, 2014, when the ALJ issued a written decision finding Born not disabled. (Tr. 26-36.) That decision contains the following enumerated findings:
(Tr. 28, 30, 36.)
On August 6, 2014, the Appeals Council denied Born's request for review of the ALJ's decision (Tr. 4-8), thereby rendering that decision the final decision of the Social Security Administration ("SSA"). This civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).
The ALJ summarized the medical records pertaining to Born's physical impairments as follows:
(Tr. 31-33.)
The ALJ summarized the medical record documenting Born's mental impairments as follows:
(Tr. 29.)
This court reviews the final decision of the SSA to determine whether substantial evidence supports that agency's findings and whether it applied the correct legal standards. Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016). Substantial evidence means "`more than a mere scintilla' but less than a preponderance; substantial evidence is such `relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). In determining whether substantial evidence supports the agency's findings, a court must examine the record as a whole, "tak[ing] into account whatever in the record fairly detracts from its weight." Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). The agency's decision must stand if substantial evidence supports it, even if the record contains evidence supporting the opposite conclusion. See Hernandez v. Comm'r of Soc. Sec., 644 F. App'x 468, 473 (6th Cir. 2016) (citation omitted).
Accordingly, this court may not "try the case de novo, resolve conflicts in evidence, or decide questions of credibility." Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Where, however, an ALJ fails to follow agency rules and regulations, the decision lacks the support of substantial evidence, "even where the conclusion of the ALJ may be justified based upon the record." Miller, 811 F.3d at 833 (quoting Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014)).
The claimant bears the ultimate burden of establishing entitlement to benefits by proving his or her "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant's "physical or mental impairment" must "result[] from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). The SSA considers a claimant's case under a five-step sequential evaluation process, described by the Sixth Circuit Court of Appeals as follows:
Parks v. Soc. Sec. Admin., 413 F. App'x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden through step four of proving the existence and severity of the limitations her impairments cause and the fact that she cannot perform past relevant work; however, at step five, "the burden shifts to the Commissioner to `identify a significant number of jobs in the economy that accommodate the claimant's residual functioning capacity.'" Kepke v. Comm'r of Soc. Sec., 636 F. App'x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)).
The SSA can carry its burden at the fifth step of the evaluation process by relying on the Medical-Vocational Guidelines, also known as "the grids," but only if a nonexertional impairment does not significantly limit the claimant, and then only when the claimant's characteristics precisely match the characteristics of the applicable grid rule. See Anderson v. Comm'r of Soc. Sec., 406 F. App'x 32, 35 (6th Cir. 2010) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2); Wright v. Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003) ("[W]here the characteristics of the claimant exactly match the characteristics in one of the rules, the grid determines whether significant numbers of other jobs exist for the person or whether that person is disabled."). Otherwise, the grids only function as an "analytical framework" for the disability determination. Anderson, 406 F. App'x at 35. Where the grids do not direct a conclusion as to the claimant's disability, the SSA must rebut the claimant's prima facie case by coming forward with proof of the claimant's individual vocational qualifications to perform specific jobs, typically through a VE's testimony. Anderson, 406 F. App'x at 35; see Wright, 321 F.3d at 616 (quoting SSR 83-12, 1983 WL 31253, *4 (Jan. 1, 1983)).
When determining a claimant's residual functional capacity ("RFC") at steps four and five, the SSA must consider the combined effect of all the claimant's impairments, mental and physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R. § 404.1545(e)).
Born argues that the ALJ committed reversible error when she: (1) found his mental impairments to be non-severe; (2) failed to properly weigh the evidence related to his physical impairments; and (3) failed to properly evaluate his credibility. (Docket No. 14, at 14-15.)
Born argues that the ALJ erred in finding, at step two of the sequential evaluation, that his mental conditions, depression and anxiety, are "non-severe" impairments. (Docket No. 14, at 19.) The Commissioner argues in response only that the ALJ properly found the plaintiff's mental health conditions to be non-severe. (Doc. No. 15, at 11.)
"[A]n impairment is considered `severe' unless `the [claimant's] impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to perform basic work activities." Winn v. Comm'r of Soc. Sec., 615 F. App'x 315, 324 (6th Cir. 2015) (quoting SSR 85-28, 1985 WL 56856, at *3 (1985)). The Sixth Circuit has "observed that the claimant's burden of establishing a `severe' impairment during the second step of the disability determination process is a `de minimis hurdle.'" Id. at 324-25 (quoting Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988)). "Under [this] prevailing de minimis view, an impairment can be considered not severe only if it is a slight abnormality that minimally affects work ability regardless of age, education, and experience." Id. at 325 (quoting Higgs, 880 F.2d at 862). When assessing the severity of a claimant's mental impairment, an ALJ's written decision must include findings based upon the "special technique" described in 20 C.F.R. § 404.1520a(b)-(e).
Here, the ALJ did not apply the special technique because she fully accepted the opinions of Ms. La Vasque and Dr. Vaught, the examining psychologists, and of Dr. Kupstas and Dr. Khaleeli, the non-examining consulting psychologists. See Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 641 (6th Cir. 2013). Born alleges that this was an error because certain evidence in the record supports a finding that his mental impairments are severe. (Docket No. 14, at 19-21.)
Even assuming this is true, however, any such error would be harmless, so long as the ALJ also took into consideration all of the plaintiff's impairments, severe and non-severe, in formulating his RFC. As explained by the Sixth Circuit,
Winn, 615 F. App'x at 326 (citation omitted); see also Fisk v. Astrue, 253 F. App'x 580, 583 (6th Cir. 2007) (holding that an ALJ's failure to find an impairment severe at step two is not reversible error if the ALJ "considers all of a claimant's impairments in the remaining steps of the disability determination"); 20 C.F.R. § 404.1523 (stating that when making a disability determination, the Regulations require that if one severe impairment exists, the Commissioner "will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity").
In this case, despite concluding that Born does not have a severe mental impairment at step two of the sequential evaluation process, the ALJ determined that Born suffers from several severe physical impairments. Having determined that he suffers from such impairments, the ALJ continued to step four of the evaluation process before concluding that Born is not disabled. In assessing Born's RFC, the ALJ did not include any work-related limitations specifically associated with his mental impairments. (Tr. 30, 36.) However, in reviewing the evidence to support her RFC assessment, the ALJ summarized the evidence in the record, referenced the plaintiff's inability "to sleep at night due to panic attacks" (Tr. 33), the fact that he was prescribed Xanax, and the plaintiff's own testimony that he "experience[s] mood swings and [goes] from one mood to the other. He stated he [goes] from depressed to anxiety to anger in a short period. He state it [is] almost uncontrollable . . . even with medication. . . ." (Tr. 34.) She stated that she had considered all of this evidence and concluded that "the preponderance of the evidence and objective medical findings support the claimant's residual functional capacity." (Tr. 36.) In addition, the ALJ further indicated that she considered Born's mental impairments in her conclusion that he can perform past relevant work as an IT consultant and supervisor, when she stated that she "compar[ed] [Born's] residual functional capacity with the physical and mental demands of the [past relevant work]." (Tr. 36 (emphasis added).)
Although the court may not have reached the same decision, given the de minimis threshold for showing a severe impairment at step two, the court cannot conclude that the failure to find that the plaintiff has severe mental impairments constitutes reversible error. The ALJ found that Born suffers from other severe impairments, continued to the next step in the five-step sequential process, and considered all of his impairments, including his mental impairments, in the remaining steps. Therefore, any such error was harmless. See Simpson v. Comm'r of Soc. Sec., 344 F. App'x 181, 190-91 (6th Cir. 2009) ("[A] finding of severity as to even one impairment clears the claimant of step two of the analysis and should cause the ALJ to consider both the severe and non-severe impairments in the remaining steps.").
Born also argues that the ALJ failed to properly weigh the medical evidence related to his physical impairments; more specifically, he contends that the ALJ did not adequately weigh the opinion of his treating physician, Dr. Bain.
An ALJ must give a treating source's opinion controlling weight "if he finds the opinion `well supported by medically acceptable clinical and laboratory diagnostic techniques' and `not inconsistent with the other substantial evidence in the case record.'" Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(c)(2)). Even if the treating physician's opinion is inconsistent with other substantial evidence in the record, the treating physician's opinion is still entitled to deference and must be weighed using the following factors: (1) the length of the treatment relationship and the frequency of the examination; (2) the nature and extent of the treatment relationship; (3) supportability of the opinion; (4) consistency of the opinion with the record as a whole; and (5) the specialization of the treating source. Id.
The regulations require the ALJ to give "good reasons" for the weight accorded a treating source's opinion. 20 C.F.R. § 404.1527(c)(2). Accordingly, a decision denying benefits
SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996); see also Wilson, 378 F.3d at 546 (remanding the case due to the ALJ's failure to follow these guidelines). This procedural safeguard "ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule." Wilson, 378 F.3d at 544.
The Sixth Circuit has held that ALJs should not give a treating source's opinion less than controlling weight solely because another medical source reaches a conflicting conclusion. See Hensley v. Astrue, 573 F.3d 263, 266-67 (6th Cir. 2009) (remanding the case because the ALJ "made his own medical evaluation [by] reaching a conclusion that lay between the two conflicting absolute views of the physicians"). Social security disability cases often involve conflicting medical assessments. Id. If ALJs were allowed to disregard treating source opinions every time another source presented contrary conclusions, "it would be a rare case indeed in which [controlling] weight would be accorded." Id. Similarly, an ALJ's non-compliance with the treating physician rule cannot be excused just because his decision is otherwise supported by substantial evidence in the record. Wilson, 378 F.3d at 546. "[T]o recognize substantial evidence as a defense to non-compliance with § 1527(c)(2) would afford the Commissioner the ability [to] violate the regulation with impunity and render the protections promised therein illusory." Id.
Here, the ALJ stated that she "[gave] little weight to the opinion of Dr. Bain because her assessment [was] not supported by the mild objective medical findings and it [was] not consistent with her examination findings or the records as a whole." (Tr. 35.) This pronouncement is entirely insufficient to satisfy the requirements of § 1527(c) and Sixth Circuit precedent. The Sixth Circuit has repeatedly held that an ALJ's broad assertion that the opinion of a treating physician is not supported by the record is inadequate; rather, the ALJ must give specific good reasons for rejecting the opinion. See, e.g., Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 245-46 (6th Cir. 2007) (reversing and remanding for further consideration, in part because the ALJ "failed to provide sufficient justification for the weight given to the opinions of [the plaintiff's] treating physicians," as a result of which "his decision in this regard did not meet the requirements of 20 C.F.R. § 416.927, and therefore cannot serve as substantial evidence"). The ALJ's succinctly stated reasons do not permit meaningful review of her application of the treating physician rule. For instance, while she concluded that Dr. Bain's opinion was "not supported by the mild objective findings," the opinion does not provide a single example or refer to any specific medical finding. (Tr. 35.) In fact, it is not even clear whether the ALJ was referring to Dr. Bain's opinion on Born's physical and mental impairments or just his physical impairments. The court further observes that the ALJ did not provide an explicit analysis of the § 1527(c)(2) factors discussed above—such as length of the treatment relationship, nature and extent of the treatment relationship, and specialization—in connection with her decision to reject Dr. Bain's recommendation.
The Commissioner argues that the ALJ properly discounted Dr. Bain's opinion and offers examples of inconsistencies between Dr. Bain's opinion and the record as justification. However, the court "may not accept appellate counsel's post hoc rationalizations for agency action. It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself." Berryhill v. Shalala, 4 F.3d 993 (Table), 1993 WL 361792, at *6 (6th Cir. Sept. 16, 1993) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 (1983)). "Courts are not at liberty to speculate on the basis of an administrative agency's order. . . . The court is not free to accept appellate counsel's post hoc rationalization for agency action in lieu of reasons and findings enunciated by the Board." Hyatt Corp. v. N.L.R.B., 939 F.2d 361, 367 (6th Cir. 1991) (internal quotation marks and citation omitted). Thus, the Commissioner's post hoc rationalizations are not an acceptable substitute for a properly supported agency determination.
The court recognizes that the record may contain evidence that otherwise supports the ALJ's decision. Nevertheless, the ALJ is required to follow the procedures set forth in the SSA regulations so that the court may ascertain whether the ALJ's decision is, in fact, supported by substantial evidence. The court finds that the ALJ failed to sufficiently explain the reasons for giving Born's treating physician's opinion little weight. "[A] 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 denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Rogers, 486 F.3d at 243.
Because the ALJ failed to follow procedural regulations designed to protect Born, the court does not find this procedural failure to be a harmless error. Consequently, reversal of the decision is required. See McLean v. Comm'r of Soc. Sec., 360 F.Supp.2d 864, 872 (E.D. Mich. 2005) ("The error is not harmless when the reviewing court is hampered by the lack of explanation and the rejected evidence could very well establish disability, as here." (citing Wilson, 378 F.3d at 547-48)).
The court further finds that it is not necessary, at this juncture, to address Born's third argument, that the ALJ improperly assessed his credibility, because the ALJ's reconsideration of this matter on remand may impact the remainder of the ALJ's sequential analysis, including the assessment of Born's credibility. See Trent v. Astrue, No. 1:09-cv-2680, 2011WL 841538, at *7 (N.D. Ohio Mar. 8, 2011). In any event, regardless of whether that assignment of error has merit, the result would be the same: remand for further proceedings rather than outright reversal and an award of benefits. See Mays v. Comm'r of Soc. Sec., No. 1:14-cv-647, 2015 WL 4755203, at *13 (S.D. Ohio Aug. 11, 2015) (Report and Recommendation), adopted, 2015 WL 5162479 (S.D. Ohio Sept. 3, 2015).
For the reasons stated above, the plaintiff's Motion for Judgment on the Administrative Record (Docket No. 13) will be granted, and the case will be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum.
An appropriate Order is filed herewith.
