VERNELIS K. ARMSTRONG, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner denying her application for Supplemental Security Income (SSI) and Disability Insurance Benefits under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 416(i), 423, 1381, et seq., and § 405(g). The parties have consented to the Magistrate entering final judgment in this case pursuant to 28 U.S.C. § 636(c)(1) and FED. R. CIV. P. 73 (Docket No. 15). Pending are briefs on the merits filed by both parties (Docket Nos.17 & 19) and Plaintiff's Reply (Docket No. 20). For the reasons set forth below, the Magistrate reverses the Commissioner's decision and remands this case pursuant to sentence four of 42 U.S.C. § 405(g).
On December 18, 2008, Plaintiff filed both her applications for SSI and DIB, alleging disability beginning May 30, 2008 (Docket No. 12, pp. 183-185; 186-188 of 662). Plaintiff's claims for both SSI and DIB were denied on June 12, 2009, and upon reconsideration on January 22, 2010 (Docket No. 12, pp. 130-135; 139-144 of 662). Plaintiff filed a written request for a hearing on June 16, 2010 (Docket No. 12, p. 145 of 662). On May 20, 2011, a hearing commenced in Cleveland, Ohio, before Administrative Law Judge (ALJ) Dennis LeBlanc, but was rescheduled so that Plaintiff could obtain legal representation (Docket No. 13, pp. 5-14 of 15). On September 13, 2011, ALJ Frederick Andreas presided over a second hearing in Cleveland, Ohio, at which Plaintiff, represented by counsel Marcia Margolius, and Vocational Expert (VE) Deborah A. Lee, attended and testified (Docket No. 12, pp. 29; 41 of 662). The ALJ issued an unfavorable decision on October 7, 2011 (Docket No.12, pp. 29-40 of 662). The Appeals Council denied review of the ALJ's decision on December 13, 2012, thus rendering the ALJ's decision the final decision of the Commissioner (Docket No. 12, p. 12 of 662).
Plaintiff testified that she was 29 years old, six feet tall, and weighed approximately 300 pounds (Docket No. 12, p. 53 of 662). Plaintiff has a driver's license; however, a friend drove her to the hearing (Docket No. 12, p. 54 of 662). Plaintiff is a college graduate; consequently, she has acquired reading, writing and math skills (Docket No. 12, p. 55 of 662). Plaintiff testified that she last worked for two years at a car dealership in Houston, Texas, but lost the job after getting sick, having her hours cut back and moving back to Ohio (Docket No. 12, pp. 55-56 of 662). When asked, Plaintiff responded that her disability onset date of May 30, 2008, coincides with the beginning of her illness (Docket No. 12, p. 56 of 662). Plaintiff testified that since moving back to Ohio, she had tried to work for a temporary agency, but was terminated after one day (Docket No. 12, pp. 57-58 of 662).
Plaintiff explained that she cannot work because she has a fear of being around people, is tired of being referred to as "sir" because of her appearance, and would rather stay in the house (Docket No. 12, p. 59 of 662). Plaintiff further elaborated that she does not talk to anyone, is depressed in general, and did not want to be at the hearing (Docket No. 12, p. 59 of 662). Plaintiff also stated that she prefers not to live, but would not harm herself. She added that her medicines are not working, that she previously smoked marijuana and has been trying to quit, but only marijuana, rather than her medicines, calms her down (Docket No. 12, p. 60 of 662).
According to Plaintiff, she still treats at the Nord Center (Docket No. 12, p. 62 of 662). When questioned about her compliance with treatment orders including hormone testing, Plaintiff responded that she refused additional testing because she knows what is wrong with her (Docket No. 12, pp. 62-63 of 662). Plaintiff testified that she vomits every other day and takes nausea medication (Docket No. 12, p. 63 of 662). She explained that her vomiting is triggered by thoughts or anger, then her chest caves in and she starts having anxiety attacks (Docket No. 12, p. 64 of 662). Plaintiff also takes Promethazine, Coumadin, Coreg, Imdur, Seroquel, Paxil, Xanax, Lisinopril, and Percocet (Docket No. 12, p. 64 of 662). Plaintiff noted that she had recently been in the hospital for five days just prior to the hearing with complaints of heaviness in her chest and stomach (Docket No. 12, p. 65 of 662).
Plaintiff testified that she last treated at the Nord Center on August 19, 2011 and had an upcoming appointment the following week (Docket No. 12, p. 65 of 662). Plaintiff described her typical day stating that she stays in her room, listens to music, and eats home-cooked meals if her mother cooks. Otherwise and most often, she eats junk food and prefers to be alone. Plaintiff explained that she and her Mother have a contentious relationship (Docket No. 12, p. 66 of 662). Plaintiff has no hobbies and doesn't perform household chores (Docket No. 12, p. 66 of 662). Plaintiff testified that in the past, she was more active, but now she gets sick thinking about having to get up, get dressed and go somewhere (Docket No. 12, p. 67 of 662).
During direct examination from her lawyer, Plaintiff testified that she gets angry and enraged when she thinks about "stuff" and that she "goes off" on people, such as her mother, and treats them poorly (Docket No. 12, p. 68 of 662). Plaintiff admitted that she "goes off" on her doctors all the time, and they don't understand her. She is tired of feeling the way that she does (Docket No. 12, p. 69 of 662). Plaintiff explained her frustration with the inability of doctors to help her (Docket No. 12, p. 69 of 662).
The VE described Plaintiff's past work as kitchen helper, DOT
The ALJ then asked the VE to consider a hypothetical person of Plaintiff's age, education and vocational background before posing her first hypothetical question:
(Docket No. 12, pp. 80-81 of 662). After considering these limitations, the VE indicated that such a person would not be capable of performing any of Plaintiff's past work (Docket No. 12, pp. 81-82 of 662). The ALJ followed up and asked the VE whether Plaintiff would be capable of performing any other work in the national economy (Docket No. 12, p. 82 of 662). The VE provided the jobs of cook helper, DOT 317.687-010, medium, unskilled, with a SVP of 2, having approximately 10,000 such jobs in northeast Ohio, 32,000 in the State of Ohio, and 873,000 in the national economy; kitchen helper, DOT 318.687-010, medium, unskilled, with an SVP of 2, having approximately 5,800 jobs in northeast Ohio, 17,000 in the State of Ohio, and 509,000 in the national economy; and cleaner or housekeeper, DOT 323.687-014, light, unskilled, with an SVP of 2, having 4,000 jobs in northeast Ohio, 13,000 in the State of Ohio, and 403,000 in the national economy (Docket No. 12, p. 82 of 662). With no exertional limitations for the housekeeper job, the VE indicated that 8,000 such jobs exist in northeast Ohio, 26,000 in the State of Ohio, and 815,000 in the national economy (Docket No. 12, p. 82 of 662).
The ALJ posed the following hypothetical question: "If somebody had . . . really no useful ability to maintain regular attendance and be punctual within customary tolerances, would that person be able to obtain or maintain employment? (Docket No. 12, pp. 82-83 of 662). The VE answered "no," opining that attendance is probably the primary aspect of any employment (Docket No. 12, p. 83 of 662). The ALJ followed up by asking, "and if the person had no ability to respond appropriately to changes in a routine work setting, would that affect their ability to . . . obtain or maintain employment?" (Docket No. 12, p. 83 of 662). In reply, the VE noted that being unable to adapt to changes in a routine work setting would affect a hypothetical individual's ability to maintain employment (Docket No. 12, p. 83 of 662). The ALJ then asked, "[i]f a person was unable to understand or remember and carry out simple instructions, how would that affect their ability to obtain or maintain employment?" (Docket No. 12, p. 83 of 662). The VE explained that she views simple job instructions as corresponding to unskilled work and if one cannot follow simple instructions, they are not capable of performing the job (Docket No. 12, p. 83 of 662).
On cross-examination, Plaintiff's counsel asked the VE to return to the ALJ's first hypothetical, but to limit the hypothetical person to light work, and inquired whether there would be jobs that such an individual could perform? (Docket No. 12, p. 83 of 662). The VE considered the hypothetical and responded that there would be jobs in the national economy that such an individual would be capable of performing, including the light duty job of housekeeper previously provided (Docket No. 12, p. 83 of 662). In response to Plaintiff's counsel, the VE provided other jobs including mail clerk, DOT 209.687-026, light, unskilled, with an SVP of 2, having approximately 1,300 jobs in northeast Ohio, 4,000 in the State of Ohio, and 98,800 in the national economy (Docket No. 12, p. 84 of 662). The VE also noted that in these positions the individual usually works alone, has occasional superficial interaction with others in a non-public or non-governmental setting (Docket No. 12, p. 84 of 662).
Summaries of Plaintiff's medical records, to the extent necessary and relevant to the issues before this Court, follow.
On July 26, 2011, Plaintiff underwent a consultation with Dr. Belagodu for management of her thrombophilia secondary to hormone imbalance. During the consultation, Plaintiff reported constant left-sided chest pain and several episodes of nausea and vomiting. On examination, Plaintiff was described as alert, in no respiratory distress, and morbidly obese. Plaintiff's head, eyes, ears, nose and throat (HEENT) were remarkable for facial hair and a beard and it was otherwise noted that she had excessive hair. Plaintiff was negative for hereditary thrombophila, her homcystine level was slightly high, and Plaintiff was noted as having a hormone imbalance with Hirsutism, which might have predisposed her to develop coronary artery thrombosis. Dr. Belagodu recommended Plaintiff maintain lifelong anticoagulation with Coumadin (Docket No. 12, pp. 634-635 of 662).
The record contains treatment notes from four treatment sessions Plaintiff had with Dr. Paras for medication management on October 21, 2008, November 12, 2008, December 10, 2008, and January 7, 2009 (Docket No. 12, pp. 391; 390; 386; 379 of 662).
On October 21, 2008, Plaintiff underwent an initial psychiatric evaluation with Dr. Paras and the typed report of that evaluation details Plaintiff's reported history of her present illness, medical, and surgical history. During the evaluation, Plaintiff denied any use of alcohol or other drugs, except marijuana, which she had used two days earlier. Dr. Paras described Plaintiff as cooperative, having fair eye contact, emotional, with a normal rate of speech, depressed mood, and without suicidal or homicidal thoughts. Plaintiff denied auditory or visual hallucinations, but the notes indicate that she expressed paranoid ideations. Plaintiff was also described as alert, oriented, with organized thoughts and appropriate answers. Plaintiff was unable to complete serial sevens and indicated that she was unable to think and concentrate very well. Dr. Paras opined that Plaintiff's insight was fair and noted that Plaintiff agreed to the suggestion that she avoid using marijuana. Dr. Paras' diagnosis for Plaintiff included Major Depression, single, severe with psychotic features rule out dysthymia, anxiety not otherwise specified, and cannabis abuse. Plaintiff was assessed a Global Assessment of Functioning (GAF)
On February 17, 2009, Dr. Christian completed a summary update on Plaintiff's psychiatric evaluation. The results of Plaintiff's mental status examination described Plaintiff as appearing male noting facial hair growth. Plaintiff was otherwise described as emotional, feeling helpless and hopeless, depressed, without homicidal or suicidal ideations, no hallucinations, but express paranoid ideations. Dr. Christian opined that Plaintiff was alert, oriented, with no obvious cognitive deficits, appropriate in manner and speech, with limited insight and judgment. Plaintiff's diagnosis was noted as Major Depression, recurrent, without psychotic features, Panic Disorder without Agoraphobia, Cannabis Abuse, and rule out Bipolar Disorder. Dr. Christian's treatment plan reflects that Plaintiff's Celexa medication was changed to Pexeva, her Seroquel dosage increased, and the frequency of her Xanax medication also increased. There was a note to refer Plaintiff for a hormonal work up as well (Docket No. 12, pp. 415-417 of 662).
On April 17, 2009, Dr. Christian completed a questionnaire for Plaintiff reporting that she was first seen at the Nord Center by a doctor on October 2, 2008, but that Dr. Christian first saw Plaintiff on February 13, 2009 and last saw her on March 25, 2009. Plaintiff was described as being neat and clean in appearance, talkative, but is angry, depressed, has flat affect, extreme anxiety, a negative outlook on the future, is oriented x 3, has difficulty concentrating, poor abstract reasoning, short-term memory loss, poverty of the mind, an IQ within normal range and poor insight and judgment. The form indicates Plaintiff reported no history of substance abuse, but uses marijuana and has not engaged in aggressive behaviors, illegal activities, and is otherwise not dependent on substances. Plaintiff's diagnosis is listed as Major Depression without psychiatric features, and Panic Disorder without agoraphobia. Plaintiff's medications include Pexeva,
Another included questionnaire dated October 6, 2009, reflects that Plaintiff was first seen by Dr. Christian on February 17, 2009 and last seen on September 29, 2009 (Docket No. 12, p. 510 of 662). Dr. Christian reported Plaintiff's abnormalities as paranoia, easy to anger and flat effect. Dr. Christian opined that Plaintiff's cognitive status indicates she has low frustration tolerance, limited insight, is easily confused and has a normal intellectual range. The form reflects that Plaintiff experiences psychogenic vomiting on an almost daily basis preventing Plaintiff from activities, that she self-isolates, has destructive self-esteem and feels helpless and hopeless. Plaintiff was described as being in denial that her gay lifestyle is an issue and that Plaintiff looks and dresses as a male. The form also reflects that Plaintiff is compliant with medication and appointments, able to poorly tolerate stress, and capable of managing any benefits. Plaintiff's diagnosis was listed as Major Depression, recurrent without psychotic features (Docket No. 12, pp. 510-512 of 662).
Plaintiff met with counselors, social worker and technicians at the Center on approximately forty-four occasions between October 20, 2008 and August 18, 2011.
On November 5, 2008, Plaintiff underwent a diagnostic assessment by Ms. Lassic
On April 17, 2009, Ms. Lassic completed a form concerning Plaintiff's daily activities and reported first treating Plaintiff on October 20, 2008 and last treating Plaintiff on February 13, 2009. According to Ms. Lassic, Plaintiff lives with her mother, has non-adaptive behaviors that prevent her from independent living, gets along poorly with family, friends, and neighbors, and self-isolates. Ms. Lassic noted that Plaintiff has not attempted to return to work, has been previously fired, and suffers from psychogenic vomiting. Ms. Lassic opined that Plaintiff has a minimal ability to do household chores, has good personal hygiene, no ability to shop, drive or use public transportation, and cannot do her own banking or engage in hobbies. Plaintiff's ability to keep her medical appointments was noted as good, but her ability to maintain counseling appointments fair to poor. Plaintiff's treatment is listed as medication therapy, which has not impacted her complaints, problems, and behaviors. Ms. Lassic indicated that Plaintiff is resistant to counseling (Docket No. 12, pp. 396-397 of 662).
On August 4, 2011, Courtney Gilbert completed a source statement for Plaintiff in which she opined that Plaintiff was no better than fair in any of the activities listed under the three categories of making occupational adjustments, intellectual functioning, and making personal and social adjustment. The statement is unsupported by any explanations, medical or clinical findings to support the assessment (Docket No. 12, pp. 582-583 of 662).
On February 23, 2009, Plaintiff underwent a psychological evaluation with Dr. Smith. Plaintiff reported relocating to Elyria, Ohio from Houston in October 2008. Plaintiff indicated that she lived with her mother but also stays with her cousin or friends because she did not feel comfortable at her mother's place. Dr. Smith's examination notes reflect that Plaintiff is a high school graduate, attended Ohio State University for four years, but left four classes shy of completing her bachelor's degree in criminology. Plaintiff reported previously working as a customer service representative on the phone, and jobs at Foot Locker, Target, and a car dealership. According to Dr. Smith's notes, Plaintiff indicated that she sees a counselor and psychiatrist. Plaintiff described her history with feeling sick noting that she was a track star in college and was supposed to go to the 2004 Olympics before falling ill. Plaintiff noted being prescribed Celexa, Klonopin and Seroquel in the past without success. Plaintiff was taking Xanax, Paxil, and Seroquel. Plaintiff also indicated taking Phenergan for nausea and vomiting. Plaintiff denied a past of sports enhancing drugs, but indicated she tried smoking marijuana a week and a half ago and smoked marijuana after getting out of athletics. Dr. Smith diagnosed Plaintiff with Dissociative Disorder not otherwise specified and Borderline Personality Disorder. With respect to Plaintiff's work-related mental abilities, Dr. Smith opined she would be severely impaired in her abilities to relate to others in a work situation, understand, remember, and follow instructions, and withstand stress associated with a day-to-day work activities. Finally, Dr. Smith concluded that Plaintiff would require assistance handling funds if they were awarded (Docket No. 12, pp. 367-373 of 662).
On June 6, 2009, Dr. Patricia Semmelman, Ph.D., completed a Psychiatric Review Technique (PRT) for Plaintiff which reflects that a RFC assessment was necessary and a coexisting nonmental impairment required referral to another medical specialty. Plaintiff's PRT was evaluated based on listings 12.04 for Affective Disorders and 12.06 for Anxiety-Related Disorders. Dr. Semmelman determined that Plaintiff's Depression, not otherwise specified, does not precisely satisfy the diagnostic criteria for listing 12.04 for Affective Disorders. Similarly, Plaintiff's Anxiety not otherwise specified was also determined not to precisely satisfy the diagnostic criteria of the Anxiety-Related Disorder listing. Dr. Semmelman rated as mild Plaintiff's restrictions of activities of daily living and rated as moderate restrictions in social functioning, maintaining concentration, persistence or pace, and otherwise noted no episodes of decompensation of extended duration (Docket No. 12, pp. 434-447 of 662).
Also on June 6, 2009, Dr. Semmelman, completed a mental residual functional capacity assessment for Plaintiff. Dr. Semmelman found Plaintiff moderately limited in her abilities to carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or proximity to others without being distracted, sustain concentration, persistence and pace, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without distraction, maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness, and respond appropriately to changes in the work setting (Docket No. 12, pp. 448-451 of 662).
On January 19, 2010, Dr. Elizabeth Das, M.D. determined the initial decision rendered on June 11, 2009 was affirmed as written, noting that on reconsideration Plaintiff did not allege any physical changes, worsening, or new physical complaints. Furthermore, Dr. Das concluded that the new medical evidence of record did not suggest that Plaintiff has any severe medical impairments (Docket No. 12, p. 554 of 662). On December 24, 2009, Dr. Karen Steiger, Ph.D., also determined that the previous mental RFC rendered by Dr. Semmelman rendered on June 6, 2009 was affirmed by the medical record in the case. Dr. Steiger detailed Plaintiff's progress observing that she had returned to school commuting to OSU which was an improvement from August 2009. Dr. Steiger indicated that there is no significant difference in Plaintiff's functional limitations. Although Plaintiff reported four panic attacks a day, Dr. Steiger found them insufficiently documented in the medical evidence (Docket No. 12, p. 553 of 662).
The Social Security Act sets forth a five-step sequential evaluation process for determining whether an adult claimant is disabled under the Act. See 20 C.F.R. § 416.920(a) (West 2014); Miller v. Comm'r Soc. Sec., 2014 WL 916945, *2 (N.D. Ohio 2014). At step one, a claimant must demonstrate she is not engaged in "substantial gainful activity" at the time she seeks disability benefits. Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007)(citing Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). At step two, the claimant must show that she suffers from a "severe impairment." Colvin, 475 F.3d at 730. A "severe impairment" is one which "significantly limits . . . physical or mental ability to do basic work activities." Id. (citing Abbott, 905 F.2d at 923). At step three, the claimant must demonstrate that her impairment or combination of impairments meets or medically equals the listing criteria set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.920(d) (West 2014). If the claimant meets her burden she is declared disabled, however, if she does not, the Commissioner must determine her residual functional capacity. 20 C.F.R. § 416.920(e) (West 2014).
A claimant's residual functional capacity is "the most [the claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 416.945(a) (West 2014). In making this determination, the regulations require the Commissioner to consider all of the claimant's impairments, including those that are not "severe." 20 C.F.R. § 416.945(a)(2) (West 2014). At the fourth step in the sequential analysis, the Commissioner must determine whether the claimant has the residual functional capacity to perform the requirements of the claimant's past relevant work. 20 C.F.R. § 416.920(e) (West 2014). Past relevant work is defined as work the claimant has done within the past 15 years (or 15 years prior to the date of the established disability), which was substantial gainful work, and lasted long enough for the claimant to learn to do it. 20 C.F.R. §§ 416.960(b), 416.965(a) (West 2014). If the claimant has the RFC to perform her past work, the claimant is not disabled. 20 C.F.R. § 416.920(f) (West 2014). If, however; the claimant lacks the RFC to perform her past work, the analysis proceeds to the fifth and final step. Id.
The final step of the sequential analysis requires the Commissioner to consider the claimant's residual functional capacity, age, education, and work experience to determine whether the claimant can make an adjustment to other work available. 20 C.F.R. §§ 416.920(a)(4)(v), (g) (West 2014). While the claimant has the burden of proof in steps one through four. The Commissioner has the burden of proof at step five to show "that there is work available in the economy that the claimant can perform." Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999). The Commissioner's finding must be "supported by substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs." Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)(citation omitted). If a claimant can make such an adjustment the claimant will be found not disabled. 20 C.F.R. §§ 416.920(a)(4)(v), (g) (West 2014). If an adjustment cannot be made then the claimant is disabled. Id.
After careful consideration of the disability standards and the entire record, ALJ Andreas made the following findings:
(Docket No. 12, pp. 29-40 of 662).
This Court exercises jurisdiction over the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 832-33 (6th Cir. 2006). On review, this Court must affirm the Commissioner's conclusions unless the Commissioner failed to apply the correct legal standard or made findings of fact that are unsupported by substantial evidence. Id. (citing Branham v. Gardner, 383 F.2d 614, 626-27 (6th Cir. 1967)). The "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Miller, 2014 WL 916945, at *3 (quoting 42 U.S.C. § 405(g)). "The substantial-evidence standard requires the Court to affirm the Commissioner's findings if they are supported by `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is more than a scintilla of evidence but less than a preponderance." Miller, (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007)). "An 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 (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009). "The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion . . . This is so because there is a `zone of choice' within which the Commissioner can act, without the fear of court interference." Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)(citations omitted).
Plaintiff argues that the ALJ's decision is not supported by substantial evidence and alleges that the ALJ: (1) failed to properly adhere to the treating physician rule with respect to his analysis of Dr. Christian's opinions and; (2) erred in discounting Dr. Smith's findings without providing adequate reasons for doing so (Docket No. 17). Defendant generally responds and asserts that the ALJ's decision is supported by substantial evidence (Docket No. 19).
In Plaintiff's first assignment of error, she alleges that the ALJ failed to follow the treating physician rule in evaluating the opinions of Nord Center treating psychiatrist Lorraine Christian, M.D. and erroneously found Dr. Christian's report was based on two visits and thus rendered by a non-treating source. Plaintiff also contends that the ALJ failed when evaluating Dr. Christian's opinion to consider at least 14 other sessions Plaintiff had with Nord Center professionals, including four with psychiatrist Carolyn Paras, M.D. Finally, Plaintiff challenges the ALJ's treating physician analysis and argues that the ALJ failed to apply the requisite factors and provide "good reasons" for giving the psychiatrist's opinions "little weight" in the analysis (Docket No. 17).
Federal regulations prescribe certain standards an ALJ must comply with in assessing the medical evidence contained in the record. The treating physician rule is one such standard and requires that a treating source's opinion be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques," and not otherwise "inconsistent with the other substantial evidence in the case record." Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009) (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)); Blakley, 581 F.3d at 406; see also SSR 96-2P, 1996 WL 374188, *1 (July 2, 1996). The regulations define a treating source as "your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had an ongoing treatment relationship with you." 20 C.F.R. § 416.902 (West 2014). The physician, psychologist, or other acceptable medical source must treat the claimant "`with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for [the] medical condition.'" Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007)(quoting Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007)). The treating physician rule stems from the belief that a claimant's treating physicians are best positioned, as medical professionals, to provide a detailed picture of the claimant's impairment and can provide unique perspective that might not otherwise be obtained from the objective evidence or other reports of examinations. See 20 C.F.R. § 404.1527(c)(2) (West 2014).
Where a treating physician's opinion is not given controlling weight, there remains a rebuttable presumption that such opinion is entitled great deference. Rogers, 486 F.3d at 242 (citation omitted). To reject a treating physician's opinions an ALJ must provide "good reason" for doing so in their decision to make it sufficiently clear to "subsequent reviews the weight the adjudicator gave the treating source's medical opinion and the reasons for that weight." Id. (citing SSR 96-2P, 1996 WL 374188, *5). "The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases,' particularly in situations where the claimant knows that his physician has deemed him disabled and therefore might be especially bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied." Wilson, 378 F.3d at 544 (citation omitted). To comply with the obligation to provide good reasons for discounting a treating source's opinion, the ALJ must (1) state that the opinion is not supported by medically acceptable clinical and laboratory techniques or is inconsistent with other evidence in the case record; (2) identify evidence supporting such finding; and (3) explain the application of the factors listed in 20 C.F.R. § 404.1527(d)(2) to determine the weight that should be given to the treating source's opinion. Allums v. Commissioner, 2013 WL 5437046, *3 (N.D.Ohio 2013) (citing Wilson, 378 F. 3d at 546). Those factors require the ALJ to consider the length, frequency, nature and extent of the treatment relationship, the evidence the medical source presents to support their opinion (supportability), the consistency of the opinion with the record as a whole, the specialization of the opinion, and any other factors which tend to support or contradict the opinion. 20 C.F.R. § 416.927(c)(2) (West 2014).
For medical opinions rendered by sources that cannot be classified as "treating sources," the regulations provide a framework for evaluating such opinions. See 20 C.F.R. § 416.927(c) (West 2014). "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"). . . 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"). Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013)(citation omitted). In evaluating these opinions, the regulations require the ALJ to consider the § 416.927(c)(2) factors for all medical opinions that are not entitled to controlling weight.
Plaintiff alleges that the ALJ made a fundamental error in weighing Dr. Christian's opinions, arguing that the ALJ's decision notes that Dr. Christian had seen Plaintiff twice, when in fact Dr. Christian had seen Plaintiff on four occasions (Docket No. 17, p. 17 of 20). Plaintiff argues that the ALJ's error is fundamental because at a minimum the ALJ overlooked two additional visits Plaintiff had with Dr. Christian (Docket No. 12, p. 17 of 20). Further, Plaintiff contends that the ALJ's decision cannot be based on substantial evidence since the ALJ did not review the record (Docket No. 12, p. 17 of 20). The Plaintiff's contentions are well-taken.
In his analysis of the opinion evidence, ALJ Andreas addressed and summarized State Agency medical consultant Dr. Patricia Semmelman's findings, which included highlighting inconsistencies between Plaintiff's reports and the treatment notes of Dr. Christian and consultative examiner Dr. Smith. Among ALJ Andreas' summation of Dr. Semmelman's findings in his decision, the ALJ wrote that "Dr. Semmelman observed that [Dr. Christian] had only seen the claimant twice and therefore, had not established a treating relationship with the claimant" (Docket No. 12, p. 36 of 662). Concluding that Dr. Semmelman's opinion about Plaintiff's limitations was wholly consistent with the evidence and Plaintiff's RFC, ALJ Andreas gave Dr. Semmelman's opinion great weight in his analysis (Docket No. 12, p. 36 of 662).
Next, ALJ Andreas addressed Dr. Christian's opinions, determining that they were based upon contradictory and incorrect information that is inconsistent with the evidence of record as a whole (Docket No. 12, p. 36 of 662). The ALJ also determined that Dr. Christian had not established a treating physician relationship with Plaintiff once again referencing Dr. Semmelman's statement that Dr. Christian had only seen Plaintiff twice (Docket No. 12, pp. 36-37 of 662). Therefore, ALJ Andreas assigned Dr. Christian's opinion little weight (Docket No. 12, p. 37 of 662).
The record reflects that Plaintiff's most extensive mental health treatment with an "acceptable medical provider" was with Dr. Christian. From February 13, 2009 through April 8, 2011, Dr. Christian treated Plaintiff 13 times. The relevant inquiry, however, is not the total length of the treatment relationship, but whether Dr. Christian was a treating source at the time she rendered her opinion. Torres v. Comm'r of Soc. Sec., 490 Fed.Appx. 748, 752 n.2 (6th Cir. 2012)(unpublished)(citing Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 506 (6th Cir. 2006)(unpublished)); Kane v. Astrue, 2011 WL 3353866, at *7 (N.D. Ohio 2011)(unpublished). Dr. Christian completed her first Mental Status Questionnaire for Plaintiff on April 17, 2009. At that time, Dr. Christian had treated Plaintiff four times: February 13, 2009 (for 60 minutes), February 17, 2009 (no time listed), February 20, 2009 (for 30 minutes), and March 25, 2009 (for 45 minutes) (Docket No. 12, pp. 432; 415-417; 430; 426 of 462. Despite such evidence, ALJ Andreas repeatedly asserts in his decision that Dr. Christian saw the Plaintiff twice (Docket No. 12, pp. 37-37 of 662). Obviously, ALJ Andreas was incorrect and he erroneously relied on the incorrect fact in determining that Dr. Christian did not establish a treating physician relationship.
Defendant contends that the ALJ reasonably relied on Dr. Semmelman's findings, noting that "the issue is not one of frequency of visits, but one of knowledge of the claimant" (Docket No. 19, p. 12 of 17). Although Defendant concedes that the ALJ incorrectly found Plaintiff had treated twice with Dr. Christian, the government insists it was a "misstatement" resulting in "harmless error," and claims that Dr. Christian could not have offered a longitudinal view of Plaintiff's condition having only treated Plaintiff six weeks before rendering her opinions (Docket No. 19, p. 12 of 17). Defendant asserts that the focus of the Court's inquiry should be on the fact that Plaintiff presented inconsistent information over those six weeks (Docket No. 19, p. 12 of 17). Unfortunately, Defendant cites no legal authority in support of its contentions, and this Court is not concerned with the reasonableness of ALJ's reliance, but instead whether the ALJ's decision is supported by substantial evidence in the record.
After reviewing the record in this case, the undersigned Magistrate finds the ALJ's decision is not supported by substantial evidence. "The Supreme Court has long recognized that a federal agency is obliged to abide by the regulations it promulgates." Sameena, Inc. v. United States Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998)(citing Vitarelli v. Seaton, 359 U.S. 535, 545 (1959); Service v. Dulles, 354 U.S. 363, 372 (1957); Accardi v. Shaugnessy, 347 U.S. 260, 267 (1954)). "The failure of an ALJ to follow the procedural rules for assigning weight to the opinions of treating sources and the giving of good reason for the weight assigned denotes a lack of substantial evidence even if the decision of the ALJ may be justified based upon the record." Allums, 975 F.Supp.2d 823 at 830 (citing Blakely, 581 F.3d at 407).
Pursuant to 20 C.F.R. § 416.945(3), the ALJ was required to assess Plaintiff's RFC "based on all of the relevant medical and other evidence" including "any statements about what [the claimant] can still do that have been provided by medical sources." See 20 C.F.R. § 416.945(3) (West 2014). Section 416.927(c) provides that "[r]egardless of its source, [the Agency] will evaluate every medical opinion [the Agency] receive[s]," using the factors set forth in the regulations for evaluating medical opinions. See 20 C.F.R. § 416.927(c) (West 2014). In this case, the ALJ's decision clearly failed to comply with either of these regulations. By virtue of incorrectly noting that Dr. Christian only treated Plaintiff twice, it follows that the ALJ failed to consider at least two additional treatment dates which were also relevant to the ALJ's determination.
Notwithstanding the ALJ's failure to consider Dr. Christian's other two treatments of Plaintiff, the undersigned Magistrate observes that the ALJ failed to address a second completed questionnaire concerning Plaintiff's mental health, which is included with materials dated October 6, 2009 and signed by Dr. Christian (Docket No. 12, pp. 510-512 of 662).
If the ALJ determined that Dr. Christian's opinions were neither well-supported nor consistent with the other medical evidence of the record, then ALJ Andreas was obligated to provide good reasons for whatever weight he chose to afford Dr. Christian's opinions. See Allums v. Comm'r of Soc. Sec., 975 F.Supp.2d 823, 828-29 (N.D. Ohio 2013)(citing Wilson, 378 F.3d at 541). The ALJ's reasoning must be such that it permits "meaningful review" by this Court of his application of the treating physician rule. Wilson, 378 F.3d at 544.
Since the ALJ failed to consider all of the relevant medical and opinion evidence from Dr. Christian, the undersigned Magistrate finds the ALJ's decision is not supported by substantial evidence.
In Plaintiff's second assignment of error, she alleges that the ALJ erred in discounting the opinion of Dr. Ronald G. Smith, consultative examiner, and argues that the ALJ failed to provide adequate reasons for discounting his opinion (Docket No. 17, pp. 18-19 of 20). Plaintiff asserts that the Agency's consultative examiners are "highly qualified" and "experts" in evaluating disability cases and that the ALJ is required to "explain" any rejection of these opinions (Docket No. 17, pp. 18-19 of 20). Plaintiff argues that the ALJ used a "blanket rationale" for discounting Dr. Smith's opinions, which is essentially inadequate (Docket No. 17, p. 19 of 20).
Although the regulations recognize that State agency medical or psychological consultants and other program physicians or psychologist are "highly qualified" and "experts" in social security disability evaluation, the ALJ is not bound by their findings. See 20 C.F.R. § 416.927(e)(2)(i) (West 2014). All the ALJ is required to do is consider the State agency's medical and psychological source opinions using the relevant factors found in §§ 416.927(a)-(d), including the medical speciality of the source of the opinion, expertise, supporting evidence in the case record, supporting explanations for the opinion, and any other relevant factors for assessing the evidence. See 20 C.F.R. § 416.927(e) (West 2014). Unlike the "good reason" requirement for discounting the opinion of a treating source, there is no requirement that the ALJ expressly note his findings for each of the factors set forth in §§ 416.927(a)-(d), instead the ALJ must simply explain the weight given such an opinion after having considered the relevant factors. See 20 C.F.R. § 416.927(e)(2)(i) (West 2014); SSR 96-6P, 1996 WL 374180 (July 2, 1996) (West 2014).
In his decision, ALJ Andreas summarized Dr. Semmelman's findings, which included her observations that Plaintiff's reports to her consultative examiners and treating sources were inconsistent with each other and other treatment records concerning her weight, substance abuse and hallucinations (Docket No. 12, p. 36 of 662). After summarizing Dr. Smith's findings, the ALJ concluded that Dr. Smith's opinion was worthy of little weight because it contains speculation, is based upon inconsistent information, and is generally inconsistent with the evidence of the record (Docket No. 12, p. 37 of 662). The ALJ's analysis of Dr. Smith's findings reflects his consideration of the requisite 20 C.F.R. § 416.927(c) factors. By characterizing Dr. Smith's findings as speculative, and inconsistent, ALJ Andreas has addressed both the supportability and consistency factors set forth in 20 C.F.R. § 416.927(c).
Accordingly, the undersigned Magistrate finds that the ALJ's findings with respect to Dr. Smith are supported by substantial evidence.
Although not discussed by the parties, the Court notes an apparent inconsistency in the VE's testimony. When asked by the ALJ to describe Plaintiff's past work, the VE included the position of kitchen helper, DOT 318.687-010 (Docket No. 12, p. 79 of 662). In response to the ALJ's first hypothetical question, the VE testified that Plaintiff would be unable to perform any of her past work, but then provided examples of other work Plaintiff was capable of performing and included the job of kitchen helper, DOT 318.687-010 (Docket No. 12, pp. 81-82 of 662). On remand, the Commissioner should address this inconsistency in the VE's testimony.
For the foregoing reasons, the Magistrate reverses the Commissioner's decision and remands this case, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further proceedings consistent with this decision. On remand, the Commissioner should reassess disability based on the assessment of Dr. Christian's opinions and address the VE's inconsistent testimony.
