RAY KENT, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security Administration (Commissioner) which denied her claim for supplement security income (SSI).
Plaintiff alleged a disability onset date of January 1, 2012. PageID.218. She identified her disabling conditions as depression, anxiety, fibromyalgia, and a knee replacement. PageID.222. Plaintiff applied for SSI on October 15, 2015. PageID.38. Prior to applying for SSI, plaintiff completed the 12th grade and "did not work at all" in the 15 years prior to filing her claim. PageID.233. The administrative law judge (ALJ) clarified that "although the claimant has worked in the past 15 years, none of the jobs was performed at substantial gainful activity levels." PageID.53. The ALJ reviewed plaintiff's claim de novo and entered a written decision denying benefits on January 31, 2018. PageID.38-55. This decision, which was later approved by the Appeals Council, has become the final decision of the Commissioner and is now before the Court for review.
This Court's review of the Commissioner's decision is typically focused on determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C. § 405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). "Substantial evidence is 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." Cutlip v. Secretary of Health & Human Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court does not review the evidence de novo, make credibility determinations or weigh the evidence. Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record also contains evidence which would have supported a different conclusion does not undermine the Commissioner's decision so long as there is substantial support for that decision in the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). Even if the reviewing court would resolve the dispute differently, the Commissioner's decision must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to benefits. A disability is established by showing that the claimant cannot engage in 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 twelve months. See 20 C.F.R. §416.905; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
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 through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003). However, at step five of the inquiry, "the burden shifts to the Commissioner to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile." Id. If it is determined that a claimant is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
"The federal court's standard of review for SSI cases mirrors the standard applied in social security disability cases." D'Angelo v. Commissioner of Social Security, 475 F.Supp.2d 716, 719 (W.D. Mich. 2007). "The proper inquiry in an application for SSI benefits is whether the plaintiff was disabled on or after her application date." Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
Plaintiff's claim failed at the fifth step of the evaluation. At the first step, the ALJ found that plaintiff has not engaged in substantial gainful activity since her application date of October 15, 2015. PageID.40. At the second step, the ALJ found that plaintiff had severe impairments of: degenerative disk disease of the lumbar spine; fibromyalgia; degenerative joint disease of the bilateral hips; osteoarthritis of the bilateral knees, status-post arthroplasty; diarrhea; insomnia; obesity, major depression; generalized anxiety disorder; and, post-traumatic stress disorder (PTSD). PageID.40-41. At the third step, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. PageID.41.
The ALJ decided at the fourth step that:
PageID.44-45. The ALJ also found that plaintiff had no past relevant work. PageID.53.
At the fifth step, the ALJ determined that plaintiff could perform a significant number of unskilled jobs at the light exertional level in the national economy. PageID.53-54. Specifically, the ALJ found that plaintiff could perform the requirements of light unskilled exertional level work as follows: general office clerk (80,000 jobs); assembly positions at a bench or table (95,000 jobs); and packaging at a bench or table (61,000 jobs). PageID.54. Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in the Social Security Act, since October 15, 2015 (the date the application was filed) through January 31, 2018 (the date of the decision). PageID.55.
Plaintiff set forth four issues on appeal:
Plaintiff's claim involves an opinion by her physician's assistant, Mr. Sam Dyste, in 2014.
Noto, 632 Fed. Appx. at 249.
While the ALJ is required to give "good reasons" for the weight assigned a treating source's opinion, Wilson v. Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004), this articulation requirement does not apply when an ALJ evaluates the report of a medical source who is not a treating, acceptable medical source. See Smith, 482 F.3d at 876. While the ALJ has discretion to assign it any weight to the opinion of a non-acceptable medical source that she "feels appropriate based on the evidence of record," Noto, 632 Fed. Appx. at 248-49, "the ALJ's decision still must say enough to allow the appellate court to trace the path of his reasoning," Stacey v. Commissioner of Social Security, 451 Fed. Appx. 517, 519 (6th Cir. 2011) (internal quotation marks omitted).
The ALJ addressed Mr. Dyste's opinions as follows:
PageID.51-52.
Here, the Court cannot follow the ALJ's path of reasoning with respect to Mr. Dyste's opinions. Stacey, 451 Fed. Appx. at 519. The ALJ gave Mr. Dyste's opinions little weight because they were inconsistent with the objective medical evidence and plaintiff's daily activities. As an initial matter, it is not clear from Mr. Dyste's opinion or the ALJ's decision as to how much plaintiff's condition improved after the knee surgeries in March and December 2016, i.e., did she have extreme limitations when she applied for SSI in October 2015 which improved after the surgeries in 2016? It is possible that plaintiff had disabling impairments before the knee surgeries but not after the surgeries.
In addition, it is not clear from the record as to how some of plaintiff's listed activities were inconsistent with Mr. Dyste's limitations. Some of plaintiff's activities appear inconsistent with those limitations. For example, plaintiff is able to care for her personal needs, able to prepare simple meals, able to drive a car, and "[s]he can use health transportation, shop in stores once per month for about 20 minutes, manage personal finances, read, watch television, bake, use an IPAD, FACEBOOK and telephone." PageID.51. Notably, the ALJ observed that plaintiff sought to adopt her grandson in 2013, during a time when she was allegedly disabled. PageID.51. Plaintiff's attempt to adopt a child suggests that she had minimal limitations which allowed her to care for both a child and herself. However, other daily activities noted by the ALJ are not necessarily inconsistent with the types of limitations posited by Mr. Dyste. For example, plaintiff needs assistance to care for the needs of her pets, and sometimes needs "all day" to perform simple household chores. PageID.51.
In short, the Court cannot follow the ALJ's reasoning for giving Mr. Dyste's opinions little weight. Accordingly, this matter will be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner should re-evaluate Mr. Dyste's opinions.
Plaintiff apparently contends that Mr. Dyste's opinions include disabling mental limitations. However, Mr. Dyste did not complete a mental residual functional capacity (RFC) assessment. Dyste completed a physical capacities assessment prepared for the Michigan Department of Health and Human Services on September 11, 2017, which identified "depression" as both a diagnosis and a medical condition which will affect plaintiff's ability to work. PageID.1299. However, there is no opinion from Mr. Dyste regarding plaintiff's mental condition or the extent of her depression.
The ALJ found that plaintiff has major depression, generalized anxiety disorder, and PTSD. PageID.49. In this regard, on January 14, 2016, Michael P. Hayes, Ph.D. diagnosed plaintiff with: major depression, severe, recurrent; generalized anxiety disorder; and PTSD. PageID.457. The doctor also stated that "[t]he accompanying symptoms of these conditions are clearly severe in nature." Id.
The ALJ's decision gave great weight to Dr. Douglass' opinion regarding plaintiff's mental RFC stating in pertinent part:
PageID.52. The doctor's opinion appears to be set forth in the RFC as, "[s]he can understand, remember and carry out simple instructions." PageID.45.
While the ALJ accepted Dr. Douglass' opinions regarding the RFC, he did not accept all of the doctor's opinions stating:
PageID.52. The additional limitations set forth in the RFC appear to include:
PageID.44-45.
Upon reviewing the ALJ's decision, it is not clear to the Court as to how the ALJ developed plaintiff's non-exertional limitations which arose from her mental impairments. The administrative hearing took place on November 2, 2017, about three months after plaintiff's psychiatric hospitalization. It is unclear from the record as to how the "more recent evidence" changed plaintiff's RFC. In short, the Court cannot trace the ALJ's reasoning as to which portions of Dr. Douglass' January 2016 opinion were given great weight, which portions of the opinion were given little weight, and which developments in plaintiff's condition led to the additional non-exertional limitations in the RFC. Accordingly, on remand, the Commissioner should re-evaluate plaintiff's mental impairments and how those impairments affect her RFC.
Finally, plaintiff contends that the ALJ failed to give proper weight to the testimony of Donna Gundle-Krieg, a real estate agent engaged to sell plaintiff's house,
Plaintiff contends that Ms. Gundle-Krieg's testimony is consistent with plaintiff's longitudinal medical record. Plaintiff's Brief (ECF No. 13, PageID.1344). Ms. Gundle-Krieg's testimony included such observations as: she found a suicide note when plaintiff was not home addressing guilt about her children and grandchildren being abused (PageID.97); found that a group of 10 people had moved into plaintiff's house without paying rent and that plaintiff would sit in her room and cry because the people were occupying her house (PageID.102); that Ms. Gundle-Krieg helped plaintiff call Adult Protective Services to get the people out (PageID.102-103); and, that plaintiff panics because she imagines that her ex-husband is looking in the window (PageID.103-104).
Here, the ALJ addressed Ms. Gundle-Krieg's testimony as follows:
PageID.53.
Ms. Gundle-Krieg's testimony essentially relates to plaintiff's mental condition. As discussed, this matter is being remanded for a re-evaluation of plaintiff's mental impairments. Only after that occurs can the ALJ determine whether Ms. Gundle-Krieg's testimony should be given perceptible weight. Accordingly, on remand, the ALJ should also re-evaluate Ms. Gundle-Krieg's testimony.
Accordingly, the Commissioner's decision will be