GREG WHITE, Magistrate Judge.
Plaintiff Emmanuel Gonzalez-Sanchez ("Plaintiff") challenges the final decision of the Commissioner of Social Security, Michael J. Astrue ("Commissioner"), denying his claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1381, et seq.
For the reasons set forth below, it is recommended that the final decision of the Commissioner be vacated and remanded for further proceedings consistent with this Report and Recommendation.
On March 6, 2006, Plaintiff filed an application for SSI alleging a disability onset date of July 9, 2005, and claiming that he was disabled due to borderline intellectual functioning, anxiety related disorders, and schizophrenic, paranoid and other psychotic disorders. (Tr. 65, 66.) His application was denied both initially and upon reconsideration. He timely requested an administrative hearing.
On November 17, 2009, an Administrative Law Judge ("ALJ") held a hearing during which Plaintiff, represented by counsel, testified. Bruce Holderead, an impartial Vocational Expert ("VE"), also testified. In addition, a Spanish interpreter assisted the claimant. On December 15, 2009, the ALJ found Plaintiff was able to perform a significant number of jobs in the national economy and, therefore, was not disabled. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied further review.
Age 21 at the time of his administrative hearing, Plaintiff is a "younger" person under social security regulations. See 20 C.F.R. § 416.963 (Tr. 33). He completed high school in 2006 in Puerto Rico while taking special education classes.
In July, 2006, Plaintiff moved to Lorain, Ohio to live with relatives. (Tr. 281.) Shortly thereafter, he visited the Nord Center for psychiatric help. (Tr. 339.) The initial Nord diagnostic assessment indicated, as follows:
(Tr. 344.) Medical records from Puerto Rico indicate that Plaintiff saw a psychiatrist on a regular basis, and was diagnosed as suffering from schizophrenia and mild mental retardation.
On August 23, 2006, Nord Center psychiatrist Enrique Huerta, M.D., evaluated Plaintiff, diagnosing generalized anxiety disorder, borderline intellectual functioning, and personality disorder NOS. (Tr. 281-282.) Dr. Huerta prescribed Paxil and Atarax. (Tr. 282.) He also completed a mental residual functional capacity ("RFC") assessment finding Plaintiff to be markedly limited in the following abilities:
(Tr. 382.) Dr. Huerta found Plaintiff to be moderately limited as follows:
(Tr. 382.) Dr. Huerta determined Plaintiff to be unemployable for a period between eight and eleven months. (Tr. 383.)
In September, 2006, Plaintiff participated at the Gathering Hope House ("GHH"), a community-based facility offering educational and life-skill programs, as well as social activities, to individuals with mental impairments. (Tr. 334.) Plaintiff was excited to be given the opportunity to take computer classes and to volunteer in the facility's kitchen. Id. A GHH staff member later noted that Plaintiff was happy and that he was helping in the kitchen. (Tr. 332.)
Plaintiff had follow-up visits with Dr. Huerta on September 25, 2006, and December 18, 2006, during which Plaintiff had a blunted effect, but he denied depression, suicidal ideation, hallucinations, delusions, or anxiety. (Tr. 326, 333.)
On November 13, 2006, non-examining state psychologist Alice Chambly, Psy.D., completed a psychiatric review technique form and a mental RFC assessment. (Tr. 293-309.) Regarding functional limitations, Dr. Chambly found that Plaintiff had mild restrictions in his activities of daily living; marked difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and, no episodes of decompensation. (Tr. 303.) Dr. Chambly's mental RFC assessment indicated that Plaintiff was markedly limited in the ability to understand, remember and carry out detailed instructions. (Tr. 307.) She found Plaintiff to be moderately limited in the ability to understand, remember, and carry out very short and simple instructions; to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and, to respond appropriately to changes in the work setting. (Tr. 307-308.) In completing the narrative portion of the assessment, Dr. Chambly determined: "The claimant is able to remember, understand, and carry out job instructions not involving complex, detailed tasks. He is able to relate to others, including coworkers, solely on a superficial basis. He is able to perform work not involving high levels of stress." (Tr. 309.)
On December 26, 2006, neurologist Dariush Saghafi, M.D., reported that Plaintiff has chronic pruritis attributed to anxiety, but no significant neurological deficits. (Tr. 312-314.) In the doctor's report, under "history of present illness," he noted that Plaintiff has "the mind of an 8 year old" and that he does not "retain information or follow instructions." (Tr. 312.) The doctor concluded, however, that Plaintiff is able to "understand the environment and his peers as well as communicate satisfactorily," and that he is "able to travel independently." (Tr. 314.)
On March 12, 2007, Dr. Huerta diagnosed Plaintiff with schizoaffective and bipolar disorders. (Tr. 282.) This assessment was written on Dr. Huerta's August 25, 2006 treatment notes. Id. He dated and initialed the notation. Id. The record, however, does not reflect any other information about this diagnosis.
On October 25, 2007, a state agency examining psychologist, David V. House, Ph.D., performed an evaluation. (Tr. 372-379.) At that time, Plaintiff was not taking any medication. (Tr. 374.) Dr. House noted that Plaintiff's concentration and attention were "at least moderately and more likely markedly limited." (Tr. 376.) Plaintiff did not require supervision in the management of his daily activities, but would require supervision in the handling of financial matters. (Tr. 379.) Dr. House noted that Plaintiff's "overall level of functioning is at a reduced level of efficiency." Id. On the Wechsler Adult Intelligence Scale, Plaintiff's I.Q. scores were in the low average to average range. (Tr. 378.) Dr. House diagnosed Plaintiff with anxiety disorder, NOS, learning disorder, NOS, bereavement, and borderline intellectual functioning. Id. Dr. House noted psychosocial stressors that include "mov[ing] from Puerto Rico to Northern Ohio in the last year, unemployment, along with anxiety issues and some learning difficulties that appear mild." (Tr. 379.)
On November 26, 2007, state reviewing psychologist, Carl Tishler, Ph.D., reviewed Plaintiff's new allegation of concentration problems as assessed by Dr. House.
From approximately January, 2007, through January, 2008, Plaintiff attended therapy sessions or communicated with case workers at the Nord Center numerous times. (Tr. 392-468.) In May, 2007, with the understanding that he needed to get a job so he could pay the bills, GHH workers helped him move into his own apartment. (Tr. 420, 422, 424.) In December, 2007, with the help of a Nord caseworker, Plaintiff began working at McDonald's. (Tr. 458.) Due to his work schedule, however, Plaintiff was unable to attend his medical and vocational appointments at the Nord Center. (Tr. 450.) On February 5, 2008, his case was closed. Id.
In May, 2008, Plaintiff was reinstated as a client at the Nord Center based upon symptoms of anxiety, irritability, impulsive behavior, and difficulty staying on task. (Tr. 443.) He agreed to comply with treatment and to seek employment. (Tr. 448.)
At the November 17, 2009, hearing, Plaintiff testified as follows:
Based upon reported earnings, Plaintiff has no past relevant work. (Tr. 53.) The ALJ posed the following hypothetical to the VE:
Id.
The VE testified that such an individual could work in the following light, unskilled positions: street cleaner, approximately 15,000 positions nationally; machine feeder, approximately 12,000 nationally; electrode cleaner, 10,000 positions nationally. Id.
The VE confirmed, after a question from Plaintiff's attorney, that these positions have a GED reasoning level of one. (Tr. 55.) Counsel also elicited that in order to perform these jobs, "a person would have to be able to consistently perform unskilled one and two-step jobs." Id. Counsel further questioned whether the occupation of a street cleaner had changed since the DOT classification. (Tr. 56.) The ALJ questioned the relevancy of the inquiry, and allowed counsel to brief the issue. (Tr. 56-57.)
A claimant may be entitled to receive SSI benefits when he establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6
The entire process entails a five-step analysis as follows: First, the claimant must not be engaged in "substantial gainful activity." Second, the claimant must suffer from a "severe impairment." A "severe impairment" is one which "significantly limits ... physical or mental ability to do basic work activities." Third, if the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment, or combination of impairments, meets a required listing under 20 C.F.R. § 404, Subpt. P, App. 1, the claimant is presumed to be disabled regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d)(2000). Fourth, if the claimant's impairment does not prevent the performance of past relevant work, the claimant is not disabled. For the fifth and final step, even though the claimant's impairment does prevent performance of past relevant work, if other work exists in the national economy that can be performed, the claimant is not disabled. Abbott v. Sullivan, 905 F.2d 918, 923 (6
The ALJ found Plaintiff established medically determinable, severe impairments, due to degenerative disc disease, borderline intellectual functioning, and depression; however, his impairments, either singularly or in combination, did not meet or equal one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Plaintiff was found to have no past work, but was determined to have a Residual Functional Capacity ("RFC") for a limited range of light, unskilled work. The ALJ then used the Medical Vocational Guidelines ("the grid") as a framework and VE testimony to determine that Plaintiff is not disabled.
This Court's review is limited to determining whether there is substantial evidence in the record to support the ALJ's findings of fact and whether the correct legal standards were applied. See Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6
The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must consider whether the proper legal standard was applied. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with a sufficient basis to determine that the Commissioner applied the correct legal standards are grounds for reversal where such failure prejudices a claimant on the merits or deprives a claimant of a substantial right. See White v. Comm'r of Soc. Sec., 572 F.3d 272 (6
Plaintiff claims the ALJ improperly evaluated the opinions of Drs. Chambly, House and Huerta. Specifically, Plaintiff contends that the ALJ did not give sufficient reasons for disagreeing with the opinions of Drs. House and Huerta. (Doc. No. 13 at 9-11.) Plaintiff also contends that the ALJ erroneously evaluated Dr. Chambly's opinion by ignoring her findings that Plaintiff could not perform high-stress work, could only have superficial social interactions, and was moderately limited in his ability to understand, remember and carry out very short and simple instructions. (Doc. No. 13 at 7-9.)
The ALJ is charged with a duty to evaluate all of the medical opinions in the record and resolve any conflicts that might appear. 20 C.F.R. § 416.927. As such, the ALJ will give each opinion the weight deemed appropriate based upon factors such as whether the physician examined or treated the claimant, whether the opinion is supported by medical signs and laboratory findings, and whether it is consistent with the entire record. 20 C.F.R. § 416.927(d)(2); SSR 96-2p. It is the responsibility of the ALJ alone, not a reviewing court, to weigh the medical evidence and resolve any conflicts that might appear. 20 C.F.R. § 416.927(d).
Furthermore, the opinion of a treating physician is entitled to controlling weight if such opinion (1) "is well-supported by medically acceptable clinical and laboratory diagnostic techniques" and (2) "is not inconsistent with the other substantial evidence in [the] case record." Meece v. Barnhart, 192 Fed. App'x 456, 560 (6
Nonetheless, the opinion of a treating physician must be based on sufficient medical data, and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d 431, 435 (6
To qualify as a treating source, the physician must have an "ongoing treatment relationship" with the claimant. 20 C.F.R. § 404.1502. A court must determine whether or not an ongoing treatment relationship exists at the time the physician's opinion is rendered. Kornecky v. Comm'r of Soc. Sec., No. 04-2171, 167 Fed. App'x 496, 506 (6th Cir. Feb. 9, 2006) ("[T]he relevant inquiry is ... whether [claimant] had the ongoing relationship with [the physician] at the time he rendered his opinion.... [V]isits to [the physician] after his RFC assessment could not retroactively render him a treating physician at the time of the assessment."); see also Yamin v. Comm'r of Soc. Sec., 67 Fed. App'x 883, 885 (6th Cir. 2003) ("These two examinations did not give [the physician] a long term overview of [the claimant's] condition."). This is because "the rationale of the treating physician doctrine simply does not apply" where a physician issues an opinion after a single examination. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
Opinions from agency medical sources are considered opinion evidence. 20 C.F.R. § 416.927(f). The regulations mandate that "[u]nless the treating physician's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do work for us." 20 C.F.R. § 416.927(f)(2)(ii). More weight is generally placed on the opinions of examining medical sources than on those of non-examining medical sources. See 20 C.F.R. § 416.927(d)(1). However, the opinions of non-examining state agency medical consultants can, under some circumstances, be given significant weight. Hart v. Astrue, 2009 WL 2485968, at *8 (S.D. Ohio Aug.5, 2009). This occurs because nonexamining sources are viewed "as highly qualified physicians and psychologists who are experts in the evaluation of the medical issues in disability claims under the [Social Security] Act." SSR 96-6p, 1996 WL 374180. Thus, the ALJ weighs the opinions of agency examining physicians and agency reviewing physicians under the same factors as treating physicians including weighing the supportability and consistency of the opinions, as well as the specialization of the physician. See 20 C.F.R. § 416.972(d), (f).
The Sixth Circuit, however, has held that the regulation requiring an ALJ to provide good reasons for the weight given a treating physician's opinion does not apply to an ALJ's failure to explain his favoring of several examining physicians' opinions over others. See Kornecky, 167 Fed. App'x at 508. The Kornecky Court found that:
Id.
Furthermore, it is well established that the plaintiff—and not the ALJ—has the burden to produce evidence in support of a disability claim. See, e.g., Wilson v. Comm'r of Soc. Sec., 280 Fed. App'x. 456, 459 (6th Cir. May 29, 2008) (citing 20 C.F.R. § 404.1512(a)). See also Struthers v. Comm'r of Soc. Sec., 101 F.3d 104 (table), 1999 WL 357818 at *2 (6th Cir. May 26, 1999) ("[I]t is the duty of the claimant, rather than the administrative law judge, to develop the record to the extent of providing evidence of mental impairment."); Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986) ("The burden of providing a complete record, defined as evidence complete and detailed enough to enable the Secretary to make a disability determination, rests with the claimant. 20 C.F.R. §§ 416.912, 416.913(d)."); cf. Wright-Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 396 (6th Cir. 2010) (although an "ALJ has an inquisitorial duty to seek clarification on material facts," a plaintiff, who is represented by counsel, must provide a "factual record" relating to the length of his employment when his past work was part of the record and was the basis of the initial decision to deny benefits). See also Hayes v. Astrue, 2011 WL 901013, *5 (S.D. Ohio Feb. 14, 2011).
In the instant matter, the ALJ rejected Dr. Huerta's mental RFC assessment that Plaintiff was markedly limited in many areas because Dr. Huerta specified that Plaintiff's symptoms were expected to last less than a year. (Tr. 30, 32.) Moreover, this mental RFC assessment was conducted after Plaintiff's first visit in August, 2006. Dr. Huerta was, therefore, not Plaintiff's treating physician. See Kornecky, 167 Fed. App'x at 506. The ALJ properly rejected Dr. Huerta's August 2006 assessment.
Plaintiff further asserts that the ALJ ignored Dr. Huerta's diagnosis dated March 12, 2007, that Plaintiff was schizoaffective and bipolar. (Doc. No. 13 at 11.) As Plaintiff continued to see Dr. Huerta, an on-going treatment relationship was established. Nonetheless, as to the March 12, 2007 diagnosis, Dr. Huerta did not provide any supporting reasons. See Meece, 192 Fed. App'x at 560. Furthermore, Plaintiff could have presented an updated RFC from Dr. Huerta. As it is the Plaintiff's burden to present evidence of his disability, the ALJ did not err.
Regarding Dr. House's evaluation, the ALJ noted:
(Tr. 30-31.)
The ALJ also addressed Dr. Chambly's assessment of Plaintiff's limitations as follows:
(Tr. 32.)
Based upon these opinions, the ALJ assessed Plaintiff's RFC as follows:
(Tr. 28.)
Here, the ALJ did not weigh the state examining physician's opinions. Furthermore, it appears the ALJ, without explanation, rejected Dr. House's opinion that Plaintiff's concentration and attention was markedly limited due to anxiety. Somewhat consistent with Dr. House's opinion, Dr. Chambly found Plaintiff to be moderately limited in maintaining attention and concentration for extended periods. (Tr. 307.) In calculating the RFC, however, the ALJ did not exclude jobs requiring concentration or explain why she did not do so.
Without any meaningful analysis, the Court cannot discern how the ALJ calculated the RFC. It is clear that the ALJ relied on Drs. House and Chambly's opinions to find that Plaintiff was able to perform unskilled work requiring simple instructions, but the ALJ did not address Plaintiff's anxiety and lack of concentration issues. Because the ALJ did not provide an analysis that is sufficiently specific, Plaintiff's argument that the ALJ failed to properly articulate the weight given to the state agency doctors is well-taken. The Court is unable to trace the path of the ALJ's reasoning as her analysis was insufficient under the Administration's procedural rules.
Rather than focusing on the ALJ's opinion, the Commissioner cites portions of the medical record that potentially support the ALJ. (Doc. No. 16 at 10-13.) However, the Commissioner cannot cure a deficient opinion by offering explanations never offered by the ALJ. As this Court has previously noted, "arguments [crafted by defense counsel] are of no consequence, as it is the opinion given by an administrative agency rather than counsel's `post hoc rationale' that is under the Court's consideration." See, e.g., Bable v. Astrue, 2007 U.S. Dist. LEXIS 83635, 27-28 (N.D. Ohio, Oct. 31, 2007) (citing NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 715, n. 1, 121 S.Ct. 1861, 149 L.Ed.2d 939, (2001)); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996) ("we cannot uphold a decision by an administrative agency ... if, while there is enough evidence in the record to support the decision, the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result."); cf. Johnson v. Sec'y of Health & Human Servs., 794 F.2d 1106, 1113 (6th Cir. 1986) (rejecting Defendant's post hoc rationale that obesity is per se remediable where there was no factual basis or findings of fact in the record to support such an argument).
As such Plaintiff's assignment of error is well taken, and this matter remanded for a new decision that adequately explains the weight accorded to the various medical sources of record in compliance with 20 C.F.R. § 404.927.
Plaintiff further contends that the ALJ improperly relied on VE testimony, improperly evaluated Plaintiff's education, and abused her discretion in conducting the hearing. The Court, however, will not address these issues as it has found remand is otherwise necessary.
Plaintiff can be awarded benefits only if proof of his disability is "compelling." Facer v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6
For the foregoing reasons, the Court finds the decision of the Commissioner not supported by substantial evidence. Accordingly, the decision of the Commissioner should be vacated and the case remanded, pursuant to 42 U.S.C. § 405(g) sentence four, for further proceedings consistent with this Report and Recommendation.
