Filed: Mar. 12, 2013
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Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 13a0064p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - CHARLES GAYHEART, - Plaintiff-Appellant, - - No. 12-3553 v. , > - Defendant-Appellee. - COMMISSIONER OF SOCIAL SECURITY, - N Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:10-cv-00401—Thomas M. Rose, District Judge. Argued: January 22, 2013 Decided and Filed: March 12, 2013 Before: CLAY, G
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 13a0064p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - CHARLES GAYHEART, - Plaintiff-Appellant, - - No. 12-3553 v. , > - Defendant-Appellee. - COMMISSIONER OF SOCIAL SECURITY, - N Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:10-cv-00401—Thomas M. Rose, District Judge. Argued: January 22, 2013 Decided and Filed: March 12, 2013 Before: CLAY, GI..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0064p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
CHARLES GAYHEART,
-
Plaintiff-Appellant,
-
-
No. 12-3553
v.
,
>
-
Defendant-Appellee. -
COMMISSIONER OF SOCIAL SECURITY,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 3:10-cv-00401—Thomas M. Rose, District Judge.
Argued: January 22, 2013
Decided and Filed: March 12, 2013
Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert Christopher Walter, HORENSTEIN, NICHOLSON &
BLUMENTHAL, Dayton, Ohio, for Appellant. Adam Sorkin, SOCIAL SECURITY
ADMINISTRATION, Chicago, Illinois, for Appellee. ON BRIEF: Stephanie D.
Dobson, HORENSTEIN, NICHOLSON & BLUMENTHAL, Dayton, Ohio, for
Appellant. Adam Sorkin, SOCIAL SECURITY ADMINISTRATION, Chicago, Illinois,
for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Charles Gayheart applied for Social
Security disability insurance benefits (DIB) in December 2005 due to manifestations of
anxiety, panic disorder, bipolar disorder, and depression. After an initial denial of his
application and three separate hearings, an administrative law judge (ALJ) found that the
1
No. 12-3553 Gayheart v Commissioner of Social Security Page 2
limitations caused by Gayheart’s impairments did not preclude him from performing a
significant number of jobs available in the national economy. The ALJ thus denied
Gayheart’s application for DIB. Gayheart’s request for an administrative appeal was
likewise denied, making the agency’s decision final. He then sought review in the
federal district court pursuant to 42 U.SC. § 405(g).
The Report and Recommendation issued by the assigned magistrate judge
concluded that the ALJ’s decision was not supported by substantial evidence and that
Gayheart should be awarded DIB. But the district court sustained the Commissioner’s
objections to the magistrate judge’s Report and Recommendation and affirmed the ALJ’s
decision. Gayheart then timely filed this appeal. For the reasons set forth below, we
REVERSE the judgment of the district court and REMAND with instructions that the
case be returned to the Social Security Administration for reconsideration.
I. BACKGROUND
A. Treatment history
After working as an assistant manager in an auto parts store for more than 20
years, Gayheart quit in September 2005 because he was suffering daily panic attacks in
the workplace that lasted up to 15 minutes at a time. He had been taking prescription
medication to treat depression, anxiety, and panic attacks since 2000. Sweating,
shaking, dizziness, shortness of breath, and an accelerated heart rate accompanied the
panic attacks, and Gayheart’s supervisor had to drive him home on several occasions
after Gayheart suffered such attacks. Gayheart also regularly drank several “beers,”
varying from as many as six to as few as two, every night since he was 22 years old.
Soon after quitting work, Gayheart sought treatment from Jackie Thompson, a
psychological therapist. Gayheart reported daily panic attacks, headaches, nervousness,
decreased sex drive, social anxiety, and sleeping difficulties to Thompson, who
diagnosed him as having a generalized anxiety disorder and a panic disorder without
agoraphobia (a fear of public places), with a differential diagnosis of bipolar disorder.
Thompson assigned Gayheart a Global Assessment Functioning (GAF) score of 42,
No. 12-3553 Gayheart v Commissioner of Social Security Page 3
indicating that Gayheart’s overall physiological functioning reflected severe symptoms
or serious impairment in social or occupational functioning. See White v. Comm’r of
Soc. Sec., 572 F.3d 272, 276 (6th Cir. 2009) (explaining the import of GAF scores);
American Psychiatric Association Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000) (noting that GAF scores between 41 and 50
indicate serious symptoms). Gayheart had seven therapy sessions with Thompson from
October 2005 to February 2006, at which point Thompson’s practice no longer accepted
the medical insurance of Gayheart’s wife.
Thompson reported in January 2006 to the Social Security Administration’s
Bureau of Disability Determination that Gayheart suffered from bipolar disorder and a
generalized anxiety disorder, that his tolerance for stress was extremely low, and that his
depression, mood swings, verbal aggression, frustration, and anxiety “interfere with [his]
ability to function effectively.” Her report also described Gayheart’s poor concentration,
slowness in processing information, and inability to be in public places or socialize in
large crowds.
Gayheart first saw psychiatrist Alice Onady in mid-November 2005 and
continued seeing her through the point of the ALJ’s final hearing in February 2009.
Dr. Onady diagnosed Gayheart’s condition as a panic disorder, with bipolar II as a
differential diagnosis. She also noted antisocial traits and assigned Gayheart a GAF
score of 50, which is in the range of serious symptoms or impairments. Dr. Onady was
aware of Gayheart’s beer consumption and instructed him not to drink alcohol with any
of the antidepressant and anti-anxiety medication that she prescribed. Her diagnoses
reflected clinical observations of depression, anxiety, isolation, and socially phobic
behavior.
Like Thompson, Dr. Onady completed a report for the Bureau of Disability
Determination. Her diagnoses in that report, dated May 2006, were panic disorder,
bipolar disorder, and mixed personality disorder (paranoid). She noted Gayheart’s poor
concentration and memory, his decreased cognitive function, and his anxious, nervous,
and edgy affect. Also noted were his poor abilities to handle simple and routine tasks
No. 12-3553 Gayheart v Commissioner of Social Security Page 4
in a work setting, to interact socially, and to adapt to change. Six months later, Dr.
Onady added diagnoses of pain disorder and “alcohol abuse in partial remission” in her
interrogatory responses to the Social Security Administration’s Office of Hearings and
Appeals. She rated Gayheart’s functional limitations as “marked” in the following three
areas: (1) daily living, (2) social functioning, and (3) concentration, persistence, or pace.
Dr. Onady also noted three episodes of decompensation (temporary exacerbations in the
symptoms of an illness or disorder).
Dr. Onady’s treatment notes continued to document diagnoses of panic disorder
and bipolar II throughout her treatment of Gayheart, and she regularly modified his
prescriptions of psychotropic medications. From November 2007 to February 2008, she
diagnosed alcohol abuse and dependency, but this diagnosis does not appear in the notes
from April through October of 2008. She added major depression to her diagnoses
starting in April 2008. Gayheart noted that his visits to Dr. Onady were limited to
approximately ten per year because that was the maximum number of visits his wife’s
insurance policy would cover.
Finally, Gayheart started treatment with Jennifer Fenske-Doyle, a psychological
therapist in Dr. Onady’s medical-practice center, in September 2006 and continued
treatment with her through October 2007. Fenske-Doyle’s initial diagnoses were bipolar
II and panic disorder with agoraphobia. She assigned Gayheart a GAF score of 49. Her
notes from 13 months of treating Gayheart provide considerable detail about the severity
of the symptoms that Gayheart suffered and how they impacted his daily life. They
reflect Gayheart’s description of the anxiety that he suffers from simply having to drive
himself to and from his therapy sessions. The notes also reflect his avoidance of social
situations, a loss of interest in hobbies, paranoid thinking, feelings of hopelessness,
difficulties concentrating, and passive thoughts of suicide.
At the end of her treatment sessions with Gayheart, Fenske-Doyle noted a recent
increase in his alcohol consumption of upwards to six “beers” per day. Her last
diagnoses were bipolar II and panic disorder with agoraphobia. She recorded that
Gayheart’s current GAF score was 45 and that the highest it had been in the past year
No. 12-3553 Gayheart v Commissioner of Social Security Page 5
was 49. According to Fenske-Doyle’s final assessment, Gayheart’s severe anxiety and
panic disorder had not improved over the course of treatment.
B. Procedural history
The Commissioner denied Gayheart’s DIB claim initially in March 2006 and
again upon reconsideration five months later. Gayheart then requested a hearing. The
initial hearing was held in March 2008, and two supplemental hearings followed in
February 2009. Testifying at the hearings were Gayheart, two vocational experts, and
clinical psychologist Mary Buban, the latter three on behalf of the Commissioner. Prior
to the hearings, the Bureau of Disability Determination referred Gayheart to Dr. Jerry
Flexman and to Dr. David Chiappone for consultative psychological evaluations. A
third psychologist, Dr. David Demuth, did not examine Gayheart, but instead reviewed
the medical records on behalf of the Bureau.
1. Testimony
Gayheart’s testimony described the onset of his panic attacks in 2000 and how
they forced him to stop working in September 2005 because they were occurring daily
and lasting up to 15 minutes. The attacks persisted after he stopped working but at a
diminished pace, occurring once or twice a week rather than daily. His anxiety prevents
him from sleeping normally and causes his hands to shake constantly, making him
unable to do tasks like gripping objects and buttoning clothes. He also described other
physical ailments, including an embolism in his left eye that causes daily severe
headaches, and knee pain that has persisted despite surgeries. According to Gayheart,
the latter condition will likely require a whole knee replacement.
Gayheart also described the limitations caused by his anxiety and panic disorder.
The magistrate judge’s Report and Recommendation summarizes this testimony as
follows:
Plaintiff testified that he continued to experience panic attacks at least
once or twice per week, which was significantly down from the daily
attacks he was experiencing in September 2005. Tr. 512-13, 550-51. He
stated that he is only able to drive two or three times per week—and only
No. 12-3553 Gayheart v Commissioner of Social Security Page 6
on short trips—because of his anxiety. Tr. 507-08. The act of being
around people causes Plaintiff to shake and can be a trigger of panic
attacks. Tr. 512-13, 564. Plaintiff is able to do a limited amount of
household chores, including putting clothes in the washing machine and
washing dishes, but is unable to do other chores such as making the bed,
mopping, sweeping, or vacuuming. Tr. 523, 556. Plaintiff testified that
he had not been to the grocery store or any type of store by himself in
over a year. Tr. 564. When Plaintiff goes out in public, it is generally
with his wife. Tr. 556. Plaintiff testified that he and his wife do not go
out to eat. Tr. 529. His wife does all of the shopping and cooking. Tr.
522-23. Plaintiff’s interaction with family beyond his wife and children
is limited to bi-weekly visits from his wife’s aunt and uncle who stop by
his house. Tr. 529, 556, 560. Plaintiff testified that he occasionally
interacts with a neighbor, but has lost contact with all of his former
friends. Tr. 556. He stated that the only time he has left Ohio in the last
three years had been to accompany his uncle to a car dealership in
Indiana, but had an anxiety attack at the car dealership. Tr. 525.
The Report and Recommendation goes on to describe Gayheart’s testimony about his
depression, medication, and alcohol consumption:
He acknowledged experiencing constant worrying, negative thoughts,
and a lack of concentration. Tr. 514, 522, 528. He has taken prescribed
medication to treat his depression, anxiety, and panic attacks since 2000.
Tr. 552-53. He testified that the side effects from the psychotropic
medication include drowsiness, decreased energy, and restlessness. Tr.
514-15, 517, 553. . . . He testified at the first hearing, on March 26,
2008, that he generally drinks two or three beers per day to help calm his
nerves, and that he has been drinking two or three beers per day since he
was twenty-two years old. Tr. 526. At the second hearing nearly eleven
months later, on February 10, 2009, Plaintiff testified that he had cut his
alcohol consumption down to having two or three beers only one time
per week based upon the advice of his psychiatrist, Dr. Onady. Tr. 557.
Plaintiff denied ever being arrested for any alcohol-related offense, and
stated that he has never needed treatment for alcohol. Id. He denied any
other form of substance abuse, but acknowledged that he smokes one
pack of cigarettes per day. Tr. 557-58.
Dr. Mary Buban testified as a medical expert at the second and third hearings in
February 2009. She did not examine or interview Gayheart, but she had reviewed all of
the exhibits, including the reports and treatment notes from Gayheart’s treating doctors
and therapists, as well as from the consultative doctors. After summarizing reports from
No. 12-3553 Gayheart v Commissioner of Social Security Page 7
Drs. Onady, Flexman, and Chiappone, she testified at the second hearing that Gayheart
would meet the Social Security Administration’s Listing 12.06 (Anxiety Related
Disorder) as provided in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then asked Dr. Buban whether the alcohol abuse documented in the
record was material to a finding of disability. At first Dr. Buban testified that the alcohol
abuse appears to have been material through February 21, 2008, the date of Dr. Onady’s
most recent treatment notes that Dr. Buban had reviewed. (The exhibit containing
medical records after that date was missing from the file that Dr. Buban initially
reviewed, which necessitated the third hearing.) But when the ALJ asked the question
again to clarify Dr. Buban’s response, she replied: “Well, according to this treatment
record, there is not sufficient evidence that without the alcohol, the anxiety
improved. . . . When alcohol is continuous throughout the record, it’s impossible for me
to say that it, it would cease being. There had to be a period of the sobriety.”
When the ALJ asked a third time whether the continued use of alcohol “would
be material throughout the record,” Dr. Buban replied affirmatively, noting that alcohol
was of “significant concern” to Dr. Onady and Fenske-Doyle through February 2008.
The ALJ then posed the question a fourth time, after Gayheart’s attorney attempted to
clarify that a diagnosis of alcohol abuse does not necessarily mean that the abuse was
material to the noted impairments. He asked: “[W]ould the claimant’s condition meet
or equal the listing solely looking at anxiety, not considering alcohol?” Dr. Buban
replied: “And, and what I stated is that there is no period of sobriety to determine that
just the condition of anxiety would meet a listing.”
Having reviewed the post-February 2008 records that were initially missing from
her file review and a new letter from Dr. Onady, Dr. Buban testified again two weeks
later. Whereas she had previously opined that Gayheart met Listing 12.06 for anxiety-
related disorders, her new testimony was that the intensity of Gayheart’s panic attacks
was not documented in the treatment records and that “[n]othing from the information
as we have it” would meet or medically equal a listing. Her testimony does not reflect
why she no longer believed that the medical evidence she had reviewed supported a
No. 12-3553 Gayheart v Commissioner of Social Security Page 8
finding that Listing 12.06 was met, and she did not acknowledge her previous opinion
or indicate that the new exhibits contributed to her changed opinion.
Although Dr. Buban’s subsequent opinion did not find that a listing was met, she
testified that Gayheart would nonetheless have the following restrictions if he were
found to be not disabled: he should perform activities independently, have no contact
with the public, have minimal contact with coworkers and supervisors, and have no
production quotas or fast-paced work. She stated that “those would be the kind of
restrictions that would be consistent with the treating notes.”
The ALJ then made one final attempt to clarify Dr. Buban’s opinion regarding
the materiality of Gayheart’s alcohol abuse in the following exchange:
Q: [Y]ou told us last time we talked with you, that—you told us several
times, I think, that the—throughout the record the issues of the anxiety
and the panic attacks and the, the alcohol abuse were pretty much
intertwined, and you really couldn’t say that the—whether the alcohol
would be material to any findings of disability.
A: Correct.
Q: If the claimant were in fact found disabled. Is that still what your
opinion is today?
A: Yes, Sir.
Finally, two vocational experts testified, one at the first hearing and the other at
the third hearing, but their testimony is not critical to the dispute in this case. The
magistrate judge’s Report and Recommendation summarized their testimony as follows:
Both [experts] were asked to consider a person of Plaintiff’s age,
education and work experience, who was limited in the manner
ultimately found by the ALJ. [Tr. 535-42, 592-99.] The vocational
experts each identified a number of jobs they believed Plaintiff would be
able to perform, but both acknowledged that none of the jobs could be
maintained by a person who was unable to perform activities within a
schedule, maintain regular attendance, and be punctual within customary
tolerances. Tr. 539, 598. Neither vocational expert addressed the issue
of whether a person who experienced constant tremors and had limited
use of his hands because of the tremors would be able to perform their
suggested vocations. Tr. 535-42, 592-99.
No. 12-3553 Gayheart v Commissioner of Social Security Page 9
2. Reports of consultative doctors
Gayheart was separately examined by two psychologists, Drs. Flexman and
Chiappone, at the request of the Bureau of Disability Determination. Dr. Flexman saw
Gayheart in February 2006. He diagnosed Gayheart with panic disorder without
agoraphobia and a personality disorder (not otherwise specified). Dr. Flexman assigned
Gayheart a GAF score of 55, indicating moderate symptoms or moderate difficulty in
social or occupational functioning. See American Psychiatric Association Diagnostic
and Statistical Manual of Mental Disorders, Text Revision 34 (4th ed. 2000). Gayheart’s
attitude was found to be depressed, his affect negative, and his eye contact poor during
30 percent of the evaluation, but his tone of voice was pleasant. His “response style”
was “suboptimal,” causing Dr. Flexman to judge the reliability of the responses to be
poor, suggesting “moderate malingering.”
Dr. Flexman concluded that Gayheart was moderately impaired in his ability to
interact appropriately with the public and coworkers, and in his ability to respond
appropriately to work pressures and changes in a work setting. All other limitations,
such as concentration, sustaining attention, following simple instructions, and interacting
with supervisors, were noted as slight.
Dr. Chiappone examined Gayheart in June 2008. He diagnosed Gayheart with
a pain disorder due both to psychological factors and to Gayheart’s general medical
condition (depression), with panic disorder without agoraphobia, and with borderline
intellectual functioning. Dr. Chiappone assigned Gayheart a GAF score of 45 based
upon the latter’s symptoms, but noted a functional level of 51 because Gayheart could
“do some basic tasks on a limited basis in the confines of home.” Gayheart appeared to
be depressed, anxious, and nervous, and “[h]e did not appear to be malingering.”
Dr. Chiappone noticed a tremor and that Gayheart had his head in his hands a lot.
Gayheart said during the evaluation that he suffered anxiety attacks weekly that were
“very severe and feel like a heart attack.”
Dr. Chiappone opined that Gayheart was moderately impaired in his ability to
remember one- and two-step job instructions and was “at least moderately impaired in
No. 12-3553 Gayheart v Commissioner of Social Security Page 10
his ability to maintain concentration and attention.” Likewise, the doctor noted moderate
impairment in Gayheart’s ability to persist with a task or to tolerate stress. He also noted
marked impairment in Gayheart’s ability to relate to coworkers, supervisors, and the
public, to respond to usual work situations and changes in a routine work setting, and to
understand, remember, and carry out complex instructions.
The Bureau of Disability Determination also requested that Dr. David Demuth
review the medical evidence in the case. Dr. Demuth performed this review not long
after Dr. Flexman’s February 2006 examination. He reported that Gayheart exhibited
no generalized persistent anxiety, depressive syndrome, or substance-abuse disorder, and
that Gayheart required no restrictions on daily living activities. Gayheart was not found
to be significantly limited in his ability to understand, remember, and carry out detailed
instructions, to work in coordination with or proximity to others without being
distracted, to respond to changes in the work setting, or to travel in unfamiliar places or
use public transportation. Moderate restrictions were noted in social functioning.
3. Dr. Onady’s letter
Between the second and third hearings, Dr. Onady wrote a letter at the request
of Gayheart’s counsel. She explained that Gayheart “still suffers from frequent panic
attacks, irritability, has a low frustration level, and extreme social anxiety, even with
medications.” In her opinion, Gayheart was “not capable of being dependable and
reliable to the extent that he would be able to work on a normal basis.” She
acknowledged that “his alcohol consumption does not help his depression,” but noted
that alcohol was “not the root of the problem, and the severity of his symptoms as well
as the frequency would still persist if he were no longer drinking alcohol.”
4. The ALJ’s decision and the appeal to the district court
After reviewing the evidence in the record and having heard the testimony at the
three hearings, the ALJ denied Gayheart’s claim for DIB. The ALJ concluded that
Gayheart suffered severe impairments, but that the combination of those impairments
did not meet or medically equal any of the listed impairments in 20 C.F.R. Part 404,
No. 12-3553 Gayheart v Commissioner of Social Security Page 11
Subpart P, Appendix 1, nor precluded Gayheart from being able to perform jobs that
exist in significant numbers in the national economy. Gayheart’s requested review of
the ALJ’s decision by the Appeals Council was denied, making the Commissioner’s
denial of DIB final. He then sought review of that decision in the federal district court
as allowed by 42 U.S.C. § 405(g).
The assigned magistrate judge issued a Report and Recommendation concluding
that the ALJ’s decision was not based on substantial evidence because it failed to accord
proper weight to the opinions of Gayheart’s treating psychiatrist and therapists. He
further concluded that the “proof of disability is overwhelming” and that the case should
be remanded to the Commissioner for an immediate award of benefits rather than for
reconsideration.
But the district court sustained the Commissioner’s objections to the Report and
Recommendation, finding that the ALJ gave adequate reasons for discounting the
opinions of Gayheart’s treating psychiatrist and therapists and that the ALJ applied the
correct legal criteria in reaching a decision that is supported by substantial evidence.
The court therefore affirmed the Commissioner’s denial of DIB and ordered the case
terminated. This timely appeal followed.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s decision regarding Social Security disability
benefits. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). “However, that review is
limited to determining whether the Commissioner’s decision is supported by substantial
evidence and was made pursuant to proper legal standards.” Id. (internal quotation
marks omitted). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Heston v. Comm’r of Soc. Sec.,
245
F.3d 528, 534 (6th Cir. 2001) (internal quotation marks omitted). A reviewing court will
affirm the Commissioner’s decision if it is based on substantial evidence, even if
substantial evidence would also have supported the opposite conclusion. Colvin v.
No. 12-3553 Gayheart v Commissioner of Social Security Page 12
Barnhart,
475 F.3d 727, 730 (6th Cir. 2007). But “[a]n ALJ’s failure to follow agency
rules and regulations denotes a lack of substantial evidence, even where the conclusion
of the ALJ may be justified based upon the record.” Cole, 661 F.3d at 937 (internal
quotation marks omitted).
B. Weighing medical opinions
The Commissioner’s regulations provide a five-step process for the evaluation
of disabilities. See 20 C.F.R. § 404.1520. This court has summarized the five steps as
follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment
must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is suffering
from a severe impairment that has lasted or is expected to last for a
continuous period of at least twelve months, and his impairment meets
or equals a listed impairment, claimant is presumed disabled without
further inquiry.
4. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his past
relevant work, if other work exists in the national economy that
accommodates his residual functional capacity and vocational factors
(age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
At step one of this process, the Commissioner does not dispute that Gayheart has
had no “substantial gainful activity” since he ceased working in September 2005 on
account of his alleged disability. Nor does the Commissioner dispute at step two that
Gayheart has the following severe impairments: headaches, an anxiety disorder and
depression, borderline intellectual functioning, and alcohol abuse.
Rather, this case turns on whether the ALJ appropriately deferred to the opinions
of Drs. Buban and Flexman over the opinion of Dr. Onady in: (1) determining at step
No. 12-3553 Gayheart v Commissioner of Social Security Page 13
three that the combination of Gayheart’s impairments do not meet or medically equal the
criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; and
(2) determining the limitations on Gayheart’s residual functioning capacity (RFC) for
use in steps four and five. Had the ALJ found at step three that an impairment listing
was met, Gayheart would have been deemed disabled. See 20 C.F.R.
§ 404.1520(a)(4)(iii). Incorporating additional limitations into the RFC, as Dr. Onady’s
opinion called for, would likewise have resulted in a finding that Gayheart was disabled
under step five because he would be deemed unable to work. See id.
§ 404.1520(a)(4)(v).
1. Standards for weighing medical opinions
“The Commissioner has elected to impose certain standards on the treatment of
medical source evidence.” Cole, 661 F.3d at 937. These standards, set forth in
administrative regulations, describe (1) the various types of evidence that the
Commissioner will consider, 20 C.F.R. § 404.1512; (2) who can provide evidence to
establish an impairment, 20 C.F.R. § 404.1513; and (3) how that evidence will be
evaluated, 20 C.F.R. § 404.1520b. Such evidence may contain medical opinions, which
“are statements from physicians and psychologists . . . that reflect judgments about the
nature and severity of [a claimant’s] impairment(s), including [] symptoms, diagnosis
and prognosis,” physical and mental restrictions, and what the claimant can still do
despite his or her impairments. 20 C.F.R. § 404.1527(a)(2). Medical opinions are to be
weighed by the process set forth in 20 C.F.R. § 404.1527(c).
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”), id. § 404.1502, 404.1527(c)(1), 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”), id. § 404.1502,
404.1527(c)(2). 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
No. 12-3553 Gayheart v Commissioner of Social Security Page 14
individual become weaker.” Soc. Sec. Rul. No. 96-6p, 1996 WL 374180, at *2 (Soc.
Sec. Admin. July 2, 1996).
The source of the opinion therefore dictates the process by which the
Commissioner accords it weight. Treating-source opinions must be given “controlling
weight” if two conditions are met: (1) the opinion “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques”; and (2) the opinion “is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R.
§ 404.1527(c)(2). If the Commissioner does not give a treating-source opinion
controlling weight, then the opinion is weighed based on the length, frequency, nature,
and extent of the treatment relationship, id., as well as the treating source’s area of
specialty and the degree to which the opinion is consistent with the record as a whole
and is supported by relevant evidence, id. § 404.1527(c)(2)-(6).
The Commissioner is required to provide “good reasons” for discounting the
weight given to a treating-source opinion. Id. § 404.1527(c)(2). These 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.” Soc. Sec. Rul. No. 96-2p, 1996 WL
374188, at *5 (Soc. Sec. Admin. July 2, 1996). This procedural requirement “ensures
that the ALJ applies the treating physician rule and permits meaningful review of the
ALJ’s application of the rule.” Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544
(6th Cir. 2004).
On the other hand, opinions from nontreating and nonexamining sources are
never assessed for “controlling weight.” The Commissioner instead weighs these
opinions based on the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion is not deemed
controlling. 20 C.F.R. § 404.1527(c). Other factors “which tend to support or contradict
the opinion” may be considered in assessing any type of medical opinion. Id.
§ 404.1527(c)(6).
No. 12-3553 Gayheart v Commissioner of Social Security Page 15
2. The ALJ failed to weigh the medical opinions according to 20
C.F.R. § 404.1527
i. Dr. Onady’s opinions and treatment notes
The ALJ accorded “little weight” to Dr. Onady’s opinions and instead relied on
the medical opinions of Dr. Buban, Dr. Flexman, and, to a lesser degree, Dr. Chiappone.
Dr. Onady’s opinions, according to the ALJ, fail both prongs of the test for controlling
weight—they “are not well-supported by any objective findings” and are “inconsistent
with other credible evidence.” (Given that the ALJ correctly noted the controlling-
weight standard earlier in his decision, we will assume that he meant “other substantial
evidence” rather than “other credible evidence.” See 20 C.F.R. § 404.1527(c)(2).) But
the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail to meet either
prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s treatment
relationship with Gayheart, as well as alleged internal inconsistencies between the
doctor’s opinions and portions of her reports. But these factors are properly applied only
after the ALJ has determined that a treating-source opinion will not be given controlling
weight. See 20 C.F.R. § 404.1527(c)(2) (listing seven specific factors to be applied
when a treating-source opinion is not given controlling weight, including the general
consistency of the opinion with the record as a whole). The ALJ also concludes that
Dr. Onady’s opinions “seem[] to have minimized the impact of the claimant’s alcohol
abuse.” Putting aside for the moment whether the ALJ had a proper basis for his
conclusion regarding such impact, the analysis does not explain to which aspect of the
controlling-weight test this critique is relevant.
The failure to provide “good reasons” for not giving Dr. Onady’s opinions
controlling weight hinders a meaningful review of whether the ALJ properly applied the
treating-physician rule that is at the heart of this regulation. See Wilson, 378 F.3d at 544.
For example, the conclusion that Dr. Onady’s opinions “are not well-supported by any
objective findings” is ambiguous. One cannot determine whether the purported problem
is that the opinions rely on findings that are not objective (i.e., that are not the result of
No. 12-3553 Gayheart v Commissioner of Social Security Page 16
medically acceptable clinical and laboratory diagnostic techniques, see 20 C.F.R.
§ 404.1527(c)(2)), or that the findings are sufficiently objective but do not support the
content of the opinions.
Similarly, the ALJ does not identify the substantial evidence that is purportedly
inconsistent with Dr. Onady’s opinions. Surely the conflicting substantial evidence must
consist of more than the medical opinions of the nontreating and nonexamining doctors.
Otherwise the treating-physician rule would have no practical force because the treating
source’s opinion would have controlling weight only when the other sources agreed with
that opinion. Such a rule would turn on its head the regulation’s presumption of giving
greater weight to treating sources because the weight of such sources would hinge on
their consistency with nontreating, nonexamining sources.
As noted above, the ALJ provided a modicum of reasoning that is relevant to
how Dr. Onady’s opinions should be weighed after determining that they were not
controlling, but even this reasoning fails to justify giving those opinions “little weight.”
The ALJ highlighted portions of Dr. Onady’s clinic notes and reports to suggest that her
“gloomy” and “pessimistic” opinions were “inconsistent with her other ratings of
[Gayheart’s] functional capacity.” For example, the ALJ refers to clinic notes reflecting
that Gayheart was looking forward to being outside and planned to go to a store to buy
a new lawnmower blade. The record, according to the ALJ, is clear that Gayheart’s
“alleged anxiety has not prevented him from leaving home, driving, keeping medical
appointments, visiting friends and neighbors, shopping with his wife, and attending three
hearings.” Although not clearly stated, the apparent implication is that these activities
are inconsistent with the social and daily living restrictions noted in Dr. Onady’s
opinions.
But the ALJ does not contend, and the record does not suggest, that Gayheart
could do any of these activities on a sustained basis, which is how the functional
limitations of mental impairments are to be assessed. See 20 C.F.R. § 404.1520a(c)(2);
20 C.F.R. Part 404, Subpart P, Appendix 1, at 12.00 (“Social functioning refers to your
capacity to interact independently, appropriately, effectively, and on a sustained basis
No. 12-3553 Gayheart v Commissioner of Social Security Page 17
with other individuals.”). Gayheart’s ability to visit his aunt and uncle, who live on his
street, and to receive occasional visits from his neighbor does not undermine Dr.
Onady’s opinion that Gayheart’s ability to interact independently and appropriately with
others on a sustained basis is markedly impaired. The same is true of his ability to
accompany his wife on grocery-shopping trips once per month. These activities would
be relevant if they suggested that Gayheart could do something on a sustained basis that
is inconsistent with Dr. Onady’s opinions. But they do not.
Furthermore, many of these examples are either taken out of context or are offset
by other examples in the record. Although it is accurate to say that Gayheart can drive,
for instance, the record also shows that driving triggers his anxiety and that he thus relies
on his wife to do most of the driving. Gayheart is likewise able to travel, but the record
indicates that he generally avoids travel and that the one out-of-state trip he took in the
three years prior to his testimony resulted in a panic attack. Nothing in the record
suggests that he has left the house independently and on a sustained basis. Gayheart
testified, in fact, that he had not gone to a store by himself in more than a year. We
therefore conclude that the ALJ’s focus on isolated pieces of the record is an insufficient
basis for giving Dr. Onady’s opinions little weight under 20 C.F.R. § 404.1527(c).
ii. Opinions and treatment notes of Jackie
Thompson and Jennifer Fenske-Doyle
The ALJ also gave “little weight” to the opinion of Gayheart’s first therapist,
Jackie Thompson, and made no mention at all of Gayheart’s second therapist, Jennifer
Fenske-Doyle, who saw Gayheart on a regular basis for 13 months. Although these
therapists do not qualify as “acceptable medical sources” under the regulations, an ALJ
must consider all relevant evidence in the case record. Soc. Sec. Rul. No. 06-03p, 2006
WL 2329939, at *4 (Soc. Sec. Admin. Aug. 9, 2006). The factors set forth in 20 C.F.R.
§ 404.1527, which under the regulation apply only to medical opinions from acceptable
medical sources, nevertheless “represent basic principles that apply to the consideration
of all opinions from medical sources . . . who have seen the individual in their
professional capacity.” Id.
No. 12-3553 Gayheart v Commissioner of Social Security Page 18
The ALJ mentioned three primary reasons for according Thompson’s opinion
little weight. First, Thompson listed “unable to go to public places” as a “significant
restriction of daily activities.” The ALJ notes that in fact Gayheart “has been able to go
out into public places, notwithstanding allegations about social anxiety and panic.” But
similar to his weighing of Dr. Onady’s opinions, the ALJ does not cite record evidence
showing that Gayheart is able to go out into public places on a sustained basis. In other
words, the fact that Gayheart can sometimes go into public places (i.e., his once-a-month
shopping trips with his wife) does not contradict Thompson’s opinion that Gayheart’s
general inability to be in public places significantly restricts what he can do on a day-to-
day basis.
The ALJ’s second and third reasons are more well-founded. His second reason
is that Thompson’s opinion relies on Gayheart’s subjective claims rather than on detailed
clinical data, which goes to the supportability of the opinion. See 20 C.F.R.
§ 404.1527(c)(3). The third reason is that Thompson saw Gayheart for only five months.
Length of treatment is also a relevant factor. See id. § 404.1527(c)(2)(i). These reasons
sufficiently support the little weight that the ALJ gave Thompson’s opinion, particularly
given the secondary importance of that opinion relative to Dr. Onady’s opinions.
In contrast, the ALJ’s decision does not discuss or even acknowledge the
extensive treatment notes from Fenske-Doyle. The district court found that the ALJ
“presumably concluded Fenske-Doyle also lacked the medical training to properly
address Gayheart’s reported problems” and that her “findings were represented by Dr.
Onady” because she was a therapist at Dr. Onady’s medical-practice center. But nothing
in the ALJ’s decision supports the court’s rationalizations of Fenske-Doyle’s complete
absence from the ALJ’s evaluation of the record. Her treatment notes were relevant
evidence, see 20 C.F.R. § 404.1512, and lent significant support to the opinions of Dr.
Onady. Because the ALJ discounted Dr. Onady’s opinions largely due to their alleged
lack of consistency with the record as a whole, some explanation should have been given
for ignoring this large portion of the record.
No. 12-3553 Gayheart v Commissioner of Social Security Page 19
iii. Opinions of Dr. Buban, Dr. Flexman, and Dr. Demuth
The foregoing analysis of the ALJ’s explanation for giving Dr. Onady’s opinions
little weight reflects the rigorous scrutiny he applied to those opinions. His failure to
apply the same level of scrutiny to the opinions of the consultative doctors on which he
relied, let alone the greater scrutiny of such sources called for by 20 C.F.R. § 404.1527,
further demonstrates that his assessment of Dr. Onady’s opinions failed to abide by the
Commissioner’s regulations and therefore calls into question the ALJ’s analysis. See
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (“An ALJ’s failure to follow agency
rules and regulations denotes a lack of substantial evidence.” (internal quotation marks
omitted)).
The ALJ’s decision provides no indication that he applied the factors set out in
§ 404.1527(c)—supportability, consistency, specialization—when weighing the
consultative doctors’ opinions, other than to note Dr. Buban’s “well-reasoned analysis
of the evidence” and the consistency of her conclusions with the other consultative
doctors’ assessments. Although the ALJ was quite critical of the alleged inconsistencies
between Dr. Onady’s opinions and other record evidence, his decision does not
acknowledge equivalent inconsistencies in the opinions of the consultative doctors. A
more rigorous scrutiny of the treating-source opinion than the nontreating and
nonexamining opinions is precisely the inverse of the analysis that the regulation
requires. See 20 C.F.R. § 404.1527(c); Soc. Sec. Rul. No. 96-6p, 1996 WL 374180, at
*2 (Soc. Sec. Admin. July 2, 1996).
The starkest example of the ALJ’s failure to scrutinize the opinions of the
consultative doctors is reflected in his assessment of Dr. Buban’s testimony. No mention
is made of the doctor’s unequivocal testimony at the second hearing that, based on her
file review, Gayheart met Listing 12.06 for anxiety disorders. Instead, the ALJ discussed
her testimony only from the third hearing that “there was insufficient evidence to show
that a mental listing was met or equaled.” The ALJ appears to have either overlooked
or accepted this stark change in opinion regarding one of the fundamental issues in the
case without any explanation for that change.
No. 12-3553 Gayheart v Commissioner of Social Security Page 20
Similarly, Dr. Flexman assigned Gayheart a GAF score significantly higher than
that given by any other professional who examined Gayheart either before or after Dr.
Flexman’s examination. And Dr. Demuth’s opinion that Gayheart had no restrictions
on daily living activities and no indications of depressive syndrome conflicts with
overwhelming record evidence to the contrary. Yet the ALJ made no mention of these
inconsistencies, which appear to be just as relevant, if not more so, than the
inconsistencies discussed with regard to Dr. Onady’s opinions.
To be sure, a properly balanced analysis might allow the Commissioner to
ultimately defer more to the opinions of consultative doctors than to those of treating
physicians. Soc. Sec. Rul. No. 96-6p, 1996 WL 374180, at *3 (“In appropriate
circumstances, opinions from . . . psychological consultants . . . may be entitled to
greater weight than the opinions of treating or examining sources.”). But the regulations
do not allow the application of greater scrutiny to a treating-source opinion as a means
to justify giving such an opinion little weight. Indeed, they call for just the opposite.
The alleged inconsistencies in Dr. Onady’s opinions, therefore, cannot constitute “good
reasons” for affording them little weight when more flagrant inconsistencies go
unquestioned in the medical opinions to which the ALJ deferred.
In the end, a proper analysis of the record might not support giving controlling
weight to the opinions of Dr. Onady. But this circuit “has made clear that [it] do[es] not
hesitate to remand when the Commissioner has not provided good reasons for the weight
given to a treating physician’s opinion.” Cole, 661 F.3d at 939 (internal quotation marks
omitted). And even if Dr. Onady’s opinions do not warrant controlling weight, they still
must be weighed as the regulations prescribe, with no greater scrutiny being applied to
her opinions than to those of the nontreating and nonexamining sources. Moreover, the
failure to provide “good reasons” was not a harmless error in the present case because
the Commissioner cannot show that, despite his failure to comply with the terms of 20
C.F.R. § 404.1527(c)(2), he has otherwise met the regulation’s goal. See Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004).
No. 12-3553 Gayheart v Commissioner of Social Security Page 21
C. Gayheart’s alcohol abuse
The preceding analysis provides a sufficient basis for remanding this case to the
Commissioner. But we will briefly address Gayheart’s argument that the ALJ erred in
assessing the materiality of his alcohol abuse so as to avoid an improper evaluation of
this issue on remand.
“An individual shall not be considered to be disabled . . . if alcoholism or drug
addiction would . . . be a contributing factor material to the Commissioner’s
determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). The
Commissioner’s regulation explains that “[t]he key factor” in determining whether drug
or alcohol abuse is material in a given case is whether the claimant would still be
disabled if he or she stopped using drugs or alcohol. 20 C.F.R. § 404.1535. Substance
abuse is not considered until the Commissioner first makes a finding that a claimant is
disabled. See id. (“If we find that you are disabled . . . we must determine whether your
drug addiction or alcoholism is a contributing factor material to the determination of
disability.”).
The ALJ did not conclude that alcohol abuse was material to Gayheart’s
disability. Rather, he never found Gayheart to be disabled at all, thus precluding the
need to assess the materiality of alcohol abuse. But alcohol abuse was a factor in the
ALJ’s decisionmaking process, particularly in his weighing of Dr. Onady’s opinions.
The ALJ first discussed Gayheart’s alcohol abuse in his findings of severe mental
impairments. He concluded that “it is evident from treatment notes that the claimant’s
excessive consumption of alcohol has coincided with his emotional problems and very
likely has been an aggravating factor.” Alcohol abuse is then listed as one of Gayheart’s
severe mental impairments.
The ALJ next discussed alcohol abuse in the context of explaining the “little
weight” that he gave to the opinions of Dr. Onady, who he found had “minimized the
impact of the claimant’s alcohol abuse.” He cited Dr. Buban’s observation that
Gayheart’s alcohol abuse and “emotional problems” were closely intertwined. Even
No. 12-3553 Gayheart v Commissioner of Social Security Page 22
considering the effects of Gayheart’s alcohol abuse and other severe mental impairments
together, the ALJ concluded that Gayheart “appears capable of carrying out at least low
stress work with limited interactions and concentration as described in the statement of
his RFC.” This assessment conforms to 20 C.F.R. § 404.1535 because the ALJ made
clear that he found Gayheart not disabled without first attempting to separate limitations
solely attributable to alcohol abuse. But the ALJ proceeded to hypothetically determine
the materiality of the alcohol abuse by writing the following:
However, if it is argued that [Gayheart] is incapable of doing even these
limited kinds of duties, such incapacity could only be attributed to the
effect of his excessive drinking. But Public Law 104-120 clearly
precludes entitlement based on alcohol or drug addictions as a material
factor to the determination of disability.
To the degree that this hypothetical finding was offered to justify according
Dr. Onady’s opinions little weight, such a finding is unpersuasive because alcohol abuse
is not a factor to be considered in determining the weight to be given to a treating-source
opinion. See 20 C.F.R. § 404.1527(c). The finding is also unpersuasive because it is not
supported by the present record. Dr. Onady wrote in a letter that alcohol was “not the
root of the problem, and the severity of [Gayheart’s] symptoms as well as the frequency
would still persist if he were no longer drinking alcohol.” And even Dr. Buban conceded
that she “really couldn’t say” whether the alcohol abuse would be material to any finding
of disability. In sum, if Gayheart is found on remand to be disabled, the materiality of
his alcohol abuse needs to be reevaluated with proper attention to the record.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district
court and REMAND with instructions that the case be returned to the Social Security
Administration for reconsideration.
