TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.
This case is an appeal of the denial of Plaintiff's application for social security disability insurance benefits. This matter is before the Court on Magistrate Judge Anthony P. Patti's Report and Recommendation dated December 29, 2016 (Dkt. 21), recommending that Plaintiff's motion for summary judgment be granted, that Defendant's motion for summary judgment be denied, and that this matter be remanded for further proceedings.
The law provides that either party may serve and file written objections "[w]ithin fourteen days after being served with a copy" of the Report and Recommendation. 28 U.S.C. § 636(b)(1). Defendant filed timely objections (Dkt. 22) to the Report and Recommendation; Plaintiff filed a response to Defendant's objections (Dkt. 23). A district court must conduct a de novo review of the parts of a Report and Recommendation to which a party objects. See 28 U.S.C. § 636(b)(1). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
The Court has reviewed Magistrate Judge Patti's Report and Recommendation, and Defendant's objections thereto. For the reasons set forth below, Defendant's objections are
The Social Security Act (the Act) "entitles benefits to certain claimants who, by virtue of a medically determinable physical or mental impairment of at least a year's expected duration, cannot engage in `substantial gainful activity.'" Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant qualifies as disabled "if she cannot, in light of her age, education, and work experience, `engage in any other kind of substantial gainful work which exists in the national economy.'" Combs, 459 F.3d at 642 (quoting 42 U.S.C. § 423(d)(2)(A)).
Under the authority of the Act, the Social Security Administration (SSA) has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(4). The five steps are as follows:
Combs, 459 F.3d at 642-43.
"Through step four, the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). If the analysis reaches the fifth step, the burden transfers to the Commissioner. See Combs, 459 F.3d at 643. At that point, the Commissioner is required to show that "other jobs in significant numbers exist in the national economy that [claimant] could perform given her RFC and considering relevant vocational factors." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
Judicial review of the Commissioner's final decision is authorized pursuant to 42 U.S.C. § 405(g). Where the Appeals Council denies review, the ALJ's decision stands as the Commissioner's final decision. See 20 C.F.R. § 404.981. Judicial review, however, is circumscribed in that the court "must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record." Longworth
The parties do not meaningfully object to Magistrate Judge Patti's thorough recitation of the medical evidence in the record, thus the Court adopts the evidence as summarized in the Report and Recommendation. Rather, Defendant raises two objections to the Report and Recommendation, primarily concerning the ALJ's conclusions and analysis of the medical evidence. Defendant's two objections are discussed below.
The first question is whether the ALJ complied with a remand order from the Appeals Council. A brief discussion of procedural history will bring this issue into focus. Plaintiff filed her application for disability insurance benefits on March 16, 2009, alleging that she had been disabled since December 26, 2006 (Tr. at 274-280). Plaintiff later amended her disability onset date to October 7, 2005 (Tr. at 93). Plaintiff's application was denied (Tr. at 165-168) and she sought a de novo hearing before an Administrative Law Judge ("ALJ"). (Tr. at 169-170). ALJ Jeanne VanderHeide held a hearing on January 5, 2011 (Tr. at 86-138). On March 22, 2011, the ALJ issued an opinion which found Plaintiff not disabled (Tr. at 141-154). Plaintiff appealed this denial and, in August 2012, the Appeals Council vacated and remanded the ALJ's decision (Tr. at 158-161). Specifically, among other things, the Appeals Council directed the ALJ to hold a second hearing, and:
On remand, the case was assigned to the same ALJ, who held another hearing on March 27, 2013 (Tr. at 38-85). On May 11, 2013, the ALJ issued a decision which again found Plaintiff not disabled (Tr. at 16-33). Plaintiff appealed again, but on December 24, 2014, the Appeals Council summarily denied Plaintiff's request for further review (Tr. at 1-3). The ALJ's second decision thus became the Commissioner's final decision. Plaintiff then timely commenced this case.
Defendant contends that this Court lacks jurisdiction to evaluate whether the ALJ complied with the Appeals Council's remand order, because a second review by the Appeals Council endorsed the ALJ's decision following the remand. There is no consensus among federal courts regarding whether an ALJ's failure to follow Appeals Council directives in a remand order may serve as independent grounds for reversal, in the absence of some other error. See
The Commissioner's own regulations require an ALJ to "take any action that is ordered by the Appeals Council...." 20 C.F.R. § 404.977(b). In Godbey, a district court held that, "[t]his means administrative law judge compliance with a remand order is a mandatory procedural requirement under the Commissioner's own regulations. Thus, when an administrative law judge fails to comply with an emphatic directive ... within a remand order, the administrative law judge's decision does not comport with applicable procedural law." Godbey, 2014 WL 4437647, at *7 (citations omitted). Magistrate Judge Patti recommended that this Court conclude that an ALJ's failure to comply with an order of the Appeals Council violates a claimant's right to receive fair process as embodied in the Commissioner's own administrative regulations. The Court agrees with this recommendation, and holds that the failure by an ALJ to follow a remand order from the Appeals Council, even if that failure is allowed to stand by a later Appeals Council ruling, can constitute a reversible error in federal court. This holds true regardless of whether substantial evidence otherwise supports the Commissioner's final decision. See Salvati, 2010 WL 546490, at *6-7.
Turning to the particulars of the ALJ's second opinion, Magistrate Judge Patti correctly noted that the Appeals Council specifically required the ALJ to evaluate treating, non-treating and examining source opinions, and to explain what weight was given to each source's opinion. However, the ALJ's second opinion did not mention Dr. Mohammed (a treating psychiatrist) or Ms. Azmeh (a treating social worker) and there is no explanation of what weight each of their opinions was given. Moreover, the ALJ expressly found the IQ testing by Dr. Schimmel to be invalid but did not explicitly state what weight, if any, she gave to his overall opinions (Tr. at 28). As such, this matter must be remanded, as the ALJ in this case did not follow the directives of the Appeals Council. On remand, the ALJ is directed to discuss the opinions of all sources, with an
Magistrate Judge Patti's Report and Recommendation found an additional, independent, reason warranting remand. Namely, that the ALJ failed to properly evaluate the treating and non-treating examining source opinions in the record. The Court also agrees with this recommendation.
The primary error involves the ALJ's conclusion concerning Plaintiff's mental condition known as somatoform disorder. Following remand, Martin Macklin, M.D. testified as a medical expert. Dr. Macklin testified that he had not examined or treated Plaintiff, but that he had reviewed the record (Tr. at 70, 74-75). When asked which impairments of Plaintiff's were established by medically acceptable clinical and laboratory findings, Dr. Macklin mentioned depression, anxiety (which he testified was sometimes diagnosed in the record as panic disorder), and "either organic mental disorder or mental retardation...." (Tr. at 75). Dr. Macklin also stated "there's also some elements of somatoform disorder, and counsel mentioned histrionic. We're not supposed to use that term anymore, so — it's a sexist term, so we don't use histrionic anymore.... [W]e use somatoform disorder now, or something similar to that" (Tr. at 76). Dr. Macklin described the combination of those impairments, along with ADHD, as being severe (Tr. at 76-77).
In fact, Dr. Macklin believed the combination of Plaintiff's impairments equaled Listing 12.07, which pertains to somatoform disorder. Dr. Macklin also testified that Plaintiff has marked difficulties in social functioning and in maintaining concentration, persistence and pace, despite her having successfully taken some college courses (Tr. at 82). Dr. Macklin's testimony concluded with the following exchange:
The ALJ rejected Dr. Macklin's somatoform disorder diagnosis, at least in part, because "during the course of approximately 5 years of mental health treatment, no other medical professional have [sic] prepared any treatment notes that support Dr. Macklin's diagnosis" (Tr. at 24). This conclusion is not supported by substantial evidence.
The medical record is replete with references to Plaintiff's displaying symptoms of somatoform disorder, or the outmoded terms for that condition: "histrionic" or "hysterical." By way of example, Dr. Dibai's statement that Plaintiff "appeared preoccupied with somatic complaints and particularly back pain...." (Tr. at 666); Dr. Schimmel opined that Plaintiff's test results mean that "[d]epressive and hysterical features are likely" (Tr. at 544); Dr. Mohammed's notation that Plaintiff "reports the following somatic complaints: Difficulty with sleep, difficulty with appetite,
Relatedly, the ALJ's nearly wholesale rejection of Plaintiff's IQ testing results and diagnosed mental impairments based upon Plaintiff's ability, at times, to successfully take classes at Henry Ford Community College
For the reasons set forth above,
It is hereby
It is
Accordingly, it is
Anthony P. Patti, UNITED STATES MAGISTRATE JUDGE.
For the reasons that follow, it is
Plaintiff, Linda Kaddo, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for social security disability insurance benefits. This matter is before
Plaintiff filed her application for disability insurance benefits on March 16, 2009, alleging that she had been disabled since December 26, 2006. (R. at 274-280.) Plaintiff later amended her disability onset date to October 7, 2005. (R. at 93.) Plaintiff's application was denied (R. at 165-168) and she sought a de novo hearing before an Administrative Law Judge ("ALJ"). (R. at 169-170.) ALJ Jeanne VanderHeide held a hearing on January 5, 2011. (R. at 86-138.) On March 22, 2011, the ALJ issued an opinion which found Plaintiff to not be disabled. (R. at 141-154.)
In response to Plaintiff's request, in August 2012 the Appeals Council vacated and remanded the ALJ's decision. (R. at 158-161.) Specifically, among other things, the Appeals Council directed the ALJ to:
(R. at 160-161.)
On remand, the case was again assigned to ALJ VanderHeide, who held another hearing on March 27, 2013. (R. at 38-85.) On May 11, 2013, the ALJ issued a decision which again found Plaintiff to not be disabled. (R. at 16-33.) On December 24, 2014, the Appeals Council denied Plaintiff's request for review. (R. at 1-3.) The ALJ's decision thus became the Commissioner's final decision. Plaintiff then timely commenced the instant action.
Initially, Plaintiff asserted she was disabled due to neck and back problems stemming from two vehicular accidents, a craniotomy
In October 2007, Plaintiff told her treating physician, S.S. Ahmad, M.D., that she had been experiencing anxiety attacks. (R. at 459.) Dr. Ahmad prescribed Xanax for Plaintiff in December 2007. (R. at 456.) Plaintiff ultimately sought mental health treatment at ACCESS (Arab Community Center for Economic and Social Services) in April 2009, after her father passed away. (R. at 524.) Aliah Azmeh, LLMSW, did an initial adult psychosocial assessment
Plaintiff saw Ms. Azmeh multiple times in 2009 and 2010 (R. at 644-662), but in May 2009 she also began to see Abdullah Mohammed, M.D., at ACCESS. (R. at 533.)
Eugene Schimmel, Ph.D., LLP, examined Plaintiff once in June 2009 and once in July 2009. (R. at 537.) In his August 2009 report, Dr. Schimmel stated that Plaintiff "did not exhibit any tendency to exaggerate or minimize symptoms." (R. at 541.) Dr. Schimmel thus concluded that the testing results he obtained were "valid, given her [Plaintiff's] high degree of motivation...." (R. at 543.) Dr. Schimmel found Plaintiff to have a verbal IQ of 73, a performance IQ of 70 and a full scale IQ of 69, which meant she was "functioning in the Extremely Low range." (R. at 543.)
In September 2010, Ms. Azmeh completed a checklist style mental RFC assessment of Plaintiff. (R. at 663-664.) Ms. Azmeh listed Plaintiff as being moderately limited in some categories, such as carrying out simple instructions and making simple work decisions. (Id.). She found Plaintiff was markedly limited in other categories, such as understanding, remembering and carrying out detailed instructions; maintaining attention and concentration for extended periods; being able to work in proximity to others without being distracted; and being able to complete a normal workday without interruptions stemming from her psychologically based symptoms. (Id.)
In November 2010, psychiatrist M. Dibai, M.D., performed a consultative psychiatric evaluation of Plaintiff. (R. at 665-667.) Dr. Dibai noted that Plaintiff "appeared preoccupied with somatic complaints[,]" particularly back pain. (R. at 666.) Plaintiff also appeared to be visibly agitated, depressed and irritable. (Id.) Dr. Dibai diagnosed Plaintiff as having chronic major depression and dependent personality trait. (R. at 667.) He ruled out Plaintiff as having bipolar disorder. (Id.)
In January 2011, after the first hearing but before the ALJ issued her first opinion, Plaintiff had a consultative examination performed by Nick Boneff, Ph.D., LP. (R. at 669-673.) Dr. Boneff described Plaintiff as appearing "to exaggerate her difficulties throughout the evaluation, presenting in an immature fashion and acting in a histrionic manner." (R. at 670.) Testing showed Plaintiff had a verbal IQ score of 68, a performance IQ score of 59 and a full scale IQ score of 62, which Dr. Dibai stated placed Plaintiff in the "mildly retarded range...." (R. at 672.) Because of the "unexplained drop" in Plaintiff's testing scores compared to tests performed by Dr. Schimmel, Dr. Dibai concluded that he could not "determine today's results to reflect a valid and accurate measure of her current functioning." (R. at 672.) Dr. Dibai also commented that Plaintiff "also obviously would seem to be extremely motivated, on some level[,] to perform on a low level to try to qualify for Social Security benefits...." (R. at 672.) Dr. Dibai diagnosed Plaintiff as having adjustment disorder with mixed emotional features and mixed personality disorder with histrionic, borderline, narcissistic and dependent features. (Id.) He assessed Plaintiff's Axis V (GAF) score as 50. (Id.)
At the January 2011 hearing, Plaintiff testified that she was twenty-nine years old and lived with her three children and her mother, who, along with other family members, helped Plaintiff take care of her children. (R. at 93-94, 122-124.) Plaintiff had earned about 110 credit hours from Henry Ford Community College with a 3.2 g.p.a., but she testified that she had "started doing bad[ly]" in school the last year or so. (R. at 95-96.) Plaintiff formerly worked as a waitress/manager in her family's restaurant. (R. at 97-98.)
Plaintiff was then enrolled in two college courses, one of which was a chemistry class she had once dropped and once received a D. (R. at 111.) Plaintiff sometimes felt too depressed to attend class (R. at 112), and when asked by her attorney, Plaintiff testified that she did not show up for about thirty percent of her classes. (R. at 113.) Similarly, Plaintiff testified that when she was employed at her family's restaurant, she called in and failed to go to work about ten days per month. (R. at 114-115.) Plaintiff testified that the treatment she received from Ms. Azmeh and Dr. Mohammed at ACCESS was "[n]ot at all" helpful. (R. at 119.) Plaintiff sometimes failed to eat for days and other times went on eating binges, which caused her weight to fluctuate. (R. at 124-126.)
Diane Doyle Regan also testified as a vocational expert ("VE"). (R. at 130-136.) The VE testified that Plaintiff's prior work as a restaurant manager was classified as skilled and light (performed at the medium level) and her prior work as a waitress was classified as unskilled and light. (R. at 132.) The VE answered simply "[n]o" to the following lengthy question from the ALJ:
(R. at 133.) When asked if there were other jobs such a hypothetical person could perform, the VE replied that such a person could work as a packer (6,000 jobs in Southeast Michigan), a sorter (4,000 jobs) and as an office helper (15,000 jobs). (R. at 133-134.) Adding a sit/stand option, according to the VE, would not affect the office helper position but would reduce by half the number of packer and sorter positions. (R. at 134.)
In her March 22, 2011 decision, the ALJ found that Plaintiff remained insured through December 31, 2011. (R. at 146.) At Step 1 of the sequential evaluation process,
Prior to undertaking Step 4, the ALJ evaluated Plaintiff's RFC and determined that she had the capacity to perform light work
In its August 31, 2012 order, the Appeals Council specified several actions the ALJ needed to take on remand. (R. at 159-161.) Of particular relevance, the Appeals Council directed the ALJ to "obtain evidence from a medical expert to clarify
At the March 27, 2013 hearing, Plaintiff was thirty-two years old and she and her three children lived with her brother and sister-in-law. (R. at 47.) Plaintiff is "starting to not be able to concentrate" and her cumulative grade point average has dropped to 2.33. (R. at 49-50.) When asked if anything had changed since the previous hearing, Plaintiff responded that she is "getting worse" and has "mood swings, short tolerance" and a worsening ability to remember. (R. at 53.)
Plaintiff still takes various prescription medications, including Adderall, Xanax and Zoloft, which cause her to become nauseated and fatigued. (R. at 54-55.) According to Plaintiff, she sometimes takes her children to school and her daughter to dance class, but she does not perform any household chores. (R. at 55-57.) Plaintiff is not in school and does not socialize with anyone outside her family. (R. at 57-58.) Plaintiff had to sell her home because she cannot work. (R. at 58-59.) Plaintiff does not want to see anyone or do anything because she is too depressed. (R. at 60.) Her anxiety interferes with her ability to drive a car and she gets lost easily. (R. at 61.) Plaintiff stopped seeing Ms. Azmeh because "every time I go talk to her, you know, she'll ask me about my issues, and it made me feel worse every time I have to talk about them." (R. at 63.) Plaintiff separated from her husband and had a boyfriend for a time, but that relationship ended. (R. at 68-69.)
Martin Macklin, M.D., testified as a medical expert ("ME"). The ME testified that he had not examined or treated Plaintiff, but he had reviewed the record. (R. at 70, 74-75.) When asked which impairments of Plaintiff's were established by medically acceptable clinical and laboratory findings, the ME mentioned depression, anxiety (which he testified was sometimes diagnosed in the record as panic disorder), and "either organic mental disorder or mental retardation...." (R. at 75.) The ME also stated "there's also some elements of somatoform disorder, and counsel mentioned histrionic. We're not supposed to use that term anymore, so — it's a sexist term, so we don't use histrionic anymore.... [W]e use somatoform disorder now, or something similar to that." (R. at 76.)
(R. at 84.)
In her opinion on remand, the ALJ again found that Plaintiff was insured through December 31, 2011. (R. at 21.) At Step 1, the ALJ found that Plaintiff did not engage in substantial gainful activity from the alleged onset date of October 7, 2005 through her date last insured of December 31, 2011. (R. at 22.)
At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled a listed impairment. (Id.) The ALJ explained that she did not adopt Dr. Macklin's contrary conclusion because "none of the other psychiatrists or psychologists who examined the claimant diagnosed her with a somatoform disorder." (R. at 24.) The ALJ also stated that "many of the elements consistent with somatoform disorder, such as overemphasis of mild symptomology or repeated complaints of unverifiable impairments, are often displayed by claimants who chronically exaggerate the severity of
Prior to undertaking a Step 4 analysis, the ALJ found that Plaintiff's RFC allowed her to perform light work except she:
(Id.) In explaining how she arrived at that RFC assessment, the ALJ stated that, with the exception of Dr. Boneff's report, "there appears to be no dispute regarding the medical evidence reviewed and discussed in the previous decision...." (R. at 26.) Therefore, "unless otherwise indicated" the ALJ adopted by reference "the analysis of all evidence contained in the March 22, 2011 decision, as though it were set forth in its entirety." (R. at 26.)
The ALJ found the IQ scores of Drs. Boneff and Schimmel to be invalid "as they directly contradict approximately 7 years' worth of demonstrated academic achievement on the part of the claimant." (R. at 27.) The ALJ also expressly gave "little weight" to Dr. Dibai's assessment because "it was prepared based upon the subjective complaints of the claimant during an initial psychiatric evaluation." (Id.)
The ALJ also found it "curious" that Plaintiff had abandoned her claim for benefits based upon her physical disabilities in light of statements about pain in her back and neck she had given to various sources. (R. at 29.) According to the ALJ, "[t]he inconsistency between these representations and the claimant's desire to `abandon' her theory of disability (to the extent it relates to a physical impairment)" suggested she "has been disingenuous with respect to the duration and severity of her physical impairment. This implication simply reinforces the finding that the claimant's testimony and subjective complaints cannot be relied upon in reaching a conclusion in this case." (Id.) The ALJ also again noted her rejection of Dr. Macklin's somatoform diagnosis because his testimony was "primarily based upon the analysis of an invalid IQ test, as well as the subjective complaints of the claimant." (R. at 30.) In sum, the ALJ found that the evidence supported a "comprehensive rejection of all representations and subjective complaints expressed by the claimant regarding the severity of her mental impairments." (R. at 31.)
At Step 4, the ALJ found that Plaintiff could not perform her past relevant work. (Id.) At Step 5, the ALJ found that Plaintiff could perform other jobs that exist in the national economy. (R. at 31-32.)
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it `is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive...."). Under this standard, "substantial evidence is defined as `more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports the ALJ's decision, the court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant."). Furthermore, the claimant "has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability." Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
Although the substantial evidence standard is deferential, it is not trivial. The Court must "`take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 95 S.Ct. 456 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding `even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6
Plaintiff raises two issues. First, she contends the ALJ failed to comply with the Appeals Council's remand order. (DE 17 at 18-21.) Second, she contends the ALJ's finding that she did not have somatoform disorder is based upon an erroneous statement (i.e., is not supported by substantial evidence). (Id. at 21-25.) The Commissioner opposes Plaintiff's motion, asserting that she is entitled to summary judgment because substantial evidence supports the ALJ's conclusions. I agree with Plaintiff.
Among other things, the Appeals Council ordered the ALJ on remand to:
(R. at 161) (emphasis added).
Plaintiff contends the ALJ's incorporation of portions of her prior opinion failed to comply with that directive because that incorporation "simply reinstated the very decision the Appeals Council vacated...." (DE 17 at 19.) Plaintiff also contends the ALJ failed to consider the opinions of all sources, as best exemplified by her "essentially ignor[ing]" the opinions of Dr. Schimmel and not discussing the opinions of Dr. Mohammed or Ms. Azmeh. (DE 17 at 20-21.)
In response, the Commissioner asserts that the ALJ "expressly reevaluated the opinions provided by Drs. Boneff and Dibai, in accordance with the Appeals Council order. No more was required." (DE 19 at 13) (citation omitted). As for the opinions of Dr. Mohammed and Ms. Azmeh, the Commissioner argues that Dr. Mohammed "did not provide an opinion about Plaintiff's functional limitations — he merely diagnosed mental conditions and assessed a GAF score" and "the Appeals Council did not suggest that there was any flaw in the ALJ's initial evaluation" of Ms. Azmeh's opinion. (DE 19 at 17.) Notably, the Commissioner does not refute Plaintiff's argument that Dr. Mohammed's opinions were not discussed by the ALJ. Overall, the Commissioner asserts that the ALJ sufficiently complied with the Appeals Council's order.
Although surprisingly not discussed by the parties, the Court must first determine whether it has jurisdiction to provide relief for an ALJ's failure to comply with an order of the Appeals Council. This question has not been uniformly answered by federal courts, nor has the Sixth Circuit addressed it.
"There is disagreement amongst Federal Courts as to whether an ALJ's failure to follow an Appeals Council directive may serve as an independent grounds for reversal absent other error." Kearney v. Colvin, 14 F.Supp.3d 943, 950 (S.D. Ohio 2014) (listing cases as follows "Compare Miller v. Barnhart, 175 Fed.Appx. 952, 956 (10th Cir.2006) (holding that because `the Appeals Council found[] the ALJ complied with its [R]emand [O]rder ... [i]t is appropriate to examine the Commissioner's final decision under our usual standards, rather than focusing on conformance with particular
The Commissioner, however, did not raise a jurisdictional argument in response to Plaintiff directly presenting the ALJ's failure to comply with the Appeals Council's order as grounds for relief.
The Court should conclude that an ALJ's failure to comply with an order of the Appeals Council violates a claimant's right to receive fair process as embodied in the Commissioner's own administrative regulations. Thus, such a failure by the ALJ can constitute a reversible error in federal court — even if substantial evidence otherwise supports the Commissioner's final decision. See Salvati, 2010 WL 546490, at *6-7.
Plaintiff argues that the ALJ's incorporation by reference of a vacated opinion was, in and of itself, an inherently reversible error. However, Plaintiff cites to no binding authority to support that far-reaching proposition and the Court is skeptical that there is inherent, reversible error each time an ALJ incorporates by reference portions of a vacated decision on remand.
The Court does agree with Plaintiff, however, that the ALJ erred in this particular case by concluding that she did not have to discuss most evidence adduced prior to the first hearing because there were no disputes about it. Near the beginning of the second hearing, the ALJ asked Plaintiff's counsel "[o]kay, and any objections to the exhibits that are in the file?" (R. at 42.) Plaintiff's counsel simply answered "[n]o." (R. at 42.) In her opinion on remand, the ALJ used that short, routine exchange designed to delineate what items were in the record to make a finding that she could incorporate by reference, unless otherwise noted, "the analysis of all evidence contained in the March 22, 2011 decision...." (R. at 26.)
Counsel's mere agreement as to what evidence was in the record does not connote
Turning to the heart of Plaintiff's argument, and despite the Commissioner's post hoc rationalizations, I agree with Plaintiff's basic assertion — the ALJ did not on remand evaluate/re-evaluate the treating, non-treating and examining source opinions as directed by the Appeals Council. See Keeton v. Comm'r of Soc. Sec., 583 Fed.Appx. 515, 524 (6
The Appeals Council specifically required the ALJ to evaluate treating, non-treating and examining source opinions, and to explain what weight was given to each source's opinion. However, the ALJ's second opinion did not mention Dr. Mohammed or Ms. Azmeh,
Frankly, it is curious that the Appeals Council declined to take action in response to Plaintiff's second request for review.
The Commissioner attempts to excuse the ALJ's failure to discuss Dr. Mohammed by noting, correctly, that he did not assess what functional limitations he believed Plaintiff has from her mental impairments. The Commissioner, however, does not cite authority to buttress her contention that the ALJ could ignore Dr. Mohammed's opinion entirely because it does not contain a functional limitation analysis.
Perhaps the omission of a functional limitation analysis from Dr. Mohammed's opinions could lead to his opinion being given less weight, but it does not excuse ignoring his opinions altogether. The ALJ's inexplicable failure to state what weight, if any, she assigned Dr. Mohammed's opinions — despite the Commissioner's belief that he is a treating psychiatrist — prevents meaningful review in this Court. Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 837 n.8 (6
If the Court agrees that remand is appropriate due to the ALJ's failure to address all source opinions, it may be unnecessary to determine whether the ALJ's conclusions about somatoform disorder are proper since the ALJ will be required to issue an entirely new opinion on remand. However, to complete the record and in
Notably, as the Court construes it, Plaintiff does not argue that she meets Listing 12.07; instead she argues the ALJ's conclusion that she does not have somatoform disorder is based upon an incorrect reading of the record (i.e., is not supported by substantial evidence). Specifically, the ALJ rejected Dr. Macklin's somatoform diagnosis, at least in part, because "during the course of approximately 5 years of mental health treatment, no other medical professional have [sic] prepared any treatment notes that support Dr. Macklin's diagnosis." (R. at 24.) Plaintiff asserts "the medical record contains numerous instances of the very findings the ALJ mistakenly believed were absent." (DE 17 at 22.) I agree.
Plaintiff relies upon Dr. Dibai's statement that Plaintiff "appeared preoccupied with somatic complaints and particularly back pain...." (R. at 666.) In addition, Plaintiff notes that Dr. Schimmel opined that Plaintiff's test results mean that "[d]epressive and hysterical features are likely."
Based on those comments, Plaintiff asserts that "there was significant evidence supportive of Dr. Macklin's opinions. The ALJ's conclusion, based upon the belief that there was none, is therefore unsupported by substantial evidence and subject to reversal by this Court. 42 USC § 405(g). Whether the ALJ ultimately] adopts these opinions or other evidence,
The ALJ was correct when she found that no source besides Dr. Macklin found Plaintiff has somatoform disorder. However, as the ALJ also noted, that fact "is certainly not determinative as to the existence or medical equivalency of that impairment." (R. at 24.) The ALJ went on to state that "no other medical professional have [sic] prepared any treatment notes that support Dr. Macklin's diagnosis." (R. at 24.) However, as the previously quoted citations from other sources show, other medical professionals have made comments which could be interpreted to support Dr. Macklin's diagnosis. The ALJ's statement that there was nothing in the record to support Dr. Macklin's conclusion thus is erroneous.
To be sure, there is also evidence which could lead to a conclusion that Plaintiff does not have somatoform disorder/meet Listing 12.07. For example, Dr. Pinaire failed to check boxes on his evaluation corresponding to somatoform disorder. (R. at 581.) The references in Dr. Mohammed's notes to Plaintiff's obsession with somatic complaints could be construed as merely her being preoccupied with her physical ailments, as the Commissioner argues.
However, the ALJ did not reach a proper conclusion based upon a consideration of the conflicting evidence. Any conclusion about whether Plaintiff has somatoform disorder must be based upon a proper analysis of the record, which includes evidence counseling for and against such a finding. In other words, the ALJ's mistaken statement about the record containing nothing to support Dr. Macklin's diagnosis is not a harmless error. Keeton, 583 Fed. Appx. at 524 ("This Court has adopted the First Circuit's pronouncement on this issue: Where a subsidiary finding is unfounded, the court will remand the case to the agency for further consideration ... if the court is in substantial doubt whether the administrative agency would have made the same ultimate finding with the erroneous finding removed from the picture[.]") (quotation marks and citations omitted).
The Social Security Act authorizes "two types of remand: (1) a post judgment remand
Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g). Accordingly, the Undersigned
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
See 20 C.F.R. § 404.1520(a)(4); see also Hensley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
20 C.F.R. Part 404, Subpart P, Appendix 1.
2010 WL 546490, at *6-7 (quotation marks and citations omitted).
(DE 19 at 17.)
(R. at 78-79.) Hypochondriasis is defined as "morbid concern about one's health especially when accompanied by delusions of physical disease[.]" https://www.merriam-webster.com/dictionary/hypochondriasis#medicalDictionary (last visited December 14, 2016). At least one online medical dictionary states that hypochondriasis "is classified as a somatoform disorder." http://medical-dictionary.thefreedictionary.com/hypochondriasis (last visited December 14, 2016).