ORDER THAT: (1) THE ALJ'S NONDISABILITY FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED

TIMOTHY S. BLACK, District Judge.

This is a Social Security disability benefits appeal. At issue is whether the administrative law judge (the "ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to disability insurance benefits ("DIB") and supplemental security income ("SSI"). (See Administrative Transcript at ("Tr.") (Tr. 12-25) (ALJ's decision)).

I.

On July 6, 2009, Plaintiff applied for DIB and SSI, alleging disability as of June 1, 2009. (Tr. 12, 174, 183). Plaintiff alleges disability due to schizoaffective disorder, depression, mood disorders, delusions, borderline intellectual functioning, hypertension, diabetes, and cerebral palsy. (Tr. 14).

The state agency denied Plaintiff's applications initially and upon reconsideration, and Plaintiff timely requested a hearing. (Tr. 12, 72-75, 118-119). In September 2011, the ALJ held a hearing at which Plaintiff, represented by an attorney, and a vocational expert ("VE") testified. (Tr. 12, 31-71). In March 2012, the ALJ determined that Plaintiff was not entitled to benefits. (Tr. 12-25). In June 2013, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 76-78), and it became the Commissioner's final and appealable decision. See 20 C.F.R. §§ 404.955, 404.981, and 416.1481. Plaintiff now seeks judicial review pursuant to section 205(g) of the Act. 42 U.S.C. §§ 405(g), 1383(c)(3).

Plaintiff is 37 years old and has a high school education.1 (Tr. 197-206). Plaintiff was honorably discharged from the military after one month for failure to adapt to military standards. (Tr. 38). He has past relevant work experience as a loader/cart returner for a home improvement store.2 (Id.) Plaintiff was terminated from his last job because he was missing too many days and frequently arrived late. (Tr. 34). Plaintiff lives with his parents. (Tr. 36).

The ALJ's "Findings," which represent the rationale of his decision, were as follows:

(Tr. 14-25).

In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and he was therefore not entitled to DIB or SSI. (Tr. 25).

On appeal, Plaintiff argues that: (1) the ALJ failed to properly consider the three treating physicians' opinions and give valid reasons for not giving them controlling and/or deferential weight; (2) the ALJ erred in refusing to consider new evidence from the Bureau of Vocational Rehabilitation; (3) the ALJ erred in failing to properly consider Anne Fulton's opinions; and (4) the ALJ erred in not finding that the Plaintiff met the listing of 12.04(A)(2) and/or 12.04(C3). The Court will address each issue in turn.

II.

The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:

Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994).

The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).

A.

The record reflects that:

I. Medical Evidence

Plaintiff developed cerebral palsy as a child and diabetes mellitus when he was 29 years old. (Tr. 469). Plaintiff's diabetes remains uncontrolled, and he had an inpatient stay due to diabetic ketoacidois. (Tr. 324, 507-641). In 2011, he passed out in the grocery store. (Tr. 652-657). His blood sugar numbers are erratic and uncontrolled. (Tr. 367, 378, 388, 354, 362, 396, 393, 400, 410, 423).

Plaintiff underwent an IQ test in 1989 and was assessed a full scale IQ of 74.6 School faculty observed that Plaintiff had significant deficits in basic reading skills, mathematics comprehension, calculation, and reasoning, as well as significant deficits in fine motor skills and adaptive behavior. (Tr. 248-276). He was diagnosed with schizoaffective disorder and borderline intellectual functioning and assigned a global functioning score of 46.7 (Tr. 823). He reported that he gets angry for no reason, and at times, he will drift off and lose concentration. (Tr. 824).

2. Hearing Testimony

a. Plaintiff's Testimony

Plaintiff testified that due to his diabetes, he has numbness and tingling in his hands and drops things due to a tingling sensation in his hands and feet. (Tr. 40, 44). He also has cerebral palsy and can only walk about a tenth of a mile before he has to stop and rest. (Tr. 46). He also has a difficult time answering questions and processing information. (Tr. 46-47). He was terminated from work as a result of too many absences — approximately four days a month. (Tr. 42). He always feels that someone is out to get him. (Tr. 47). Plaintiff talks to himself out loud daily and hears voices telling him what to do. (Tr. 47-48). He can carry on a conversation with his father for approximately five minutes. (Tr. 48). Plaintiff cannot watch a 30 minute television program and talk to his father about it, because he has concentration and focus problems. (Id.) He gets tingling pain in his feet when he tries to vacuum. (Id.)

b. Father's testimony

Plaintiff's father testified that Plaintiff's cerebral palsy affects him when he is doing any type of movement, trying to do anything or handle anything, and his hands will go numb two or three times a week and can last a half of a day. (Tr. 52). He has problems expressing himself, comes across as very slow, and when asked a question, takes a long time to answer. (Tr. 53). Plaintiff's father testified that Plaintiff has a lack of focus and cannot concentrate. For example, if the father asks Plaintiff to do something around the house, the father has to repeat himself, sometimes three, four, and five times to get Plaintiff to do something. (Id.) Plaintiff's attention and focus is limited to 15 or 20 minutes. (Tr. 54). Plaintiff has conversations with invisible people two to four times a day. (Id.) With regard to his diabetes, EMS had to be called to a Kroger's store when Plaintiff collapsed because his sugars were down to 25 or 26. (Tr. 57).

c. ALJ Decision

In his decision, the ALJ determined that Plaintiff had the following "severe" impairments: diabetes, cerebral palsy, mood disorder, borderline intellectual functioning, bipolar disorder, vitiligo, hypertension, and history of cellulitis. (Tr. 14). The ALJ found that Plaintiff had the residual functional capacity to perform a full range of sedentary work.8 However he should never climb ladders, ropes or scaffolds, and should avoid all exposure to hazards such as dangerous machinery and unprotected heights. Plaintiff was limited to understanding, remembering, and carrying out simple tasks and performing simple tasks, should have only occasional interaction with the general public, and should not be subject to production rate pace work. (Tr. 17). Based on this RFC determination, there are jobs that the ALJ thought Plaintiff could perform such as assembler inspector and hand packager. (Tr. 24).

B.

First, Plaintiff claims that the ALJ erred in failing to properly weigh the opinions of his treating physicians.9

In his decision, the ALJ relied on the state agency physicians. The most recent of such opinions were rendered in 2010 (Dr. Steven Meyer) and 2009 (Drs. Patricia Semmelman and Nancy Schmidtgossling10 ), more than a year prior to the hearing, and before most of the medical evidence was filed. (Tr. 649-832). Dr. Schmidtgossling is the only state agency physician who actually met and examined Plaintiff. Moreover, the RFC opinions from these doctors are inconsistent with the opinions of treating physicians Dr. Murthy, Dr. Delamerced, and Dr. Heile.

Dr. Heile saw Plaintiff thirty-seven times, beginning as early as September 2006. Dr. Heile diagnosed Plaintiff with bipolar/depression, cerebral palsy, and uncontroled diabetes, which causes severe fatigue and the inability to hold gainful employment. In a Residual Functional Capacity form dated January 13, 2010, Dr. Heile found that Plaintiff was markedly limited in his ability to: (1) complete a normal workday and workweek without interruptions from psychologically based symptoms; (2) perform at a consistent pace without an unreasonable number and length of rest periods; (3) maintain socially appropriate behavior; and (4) adhere to basic standards of neatness and cleanliness.11 The ALJ discounted Dr. Heile's opinions, claiming that the limitations were outside of the doctors' specialty and inconsistent with the doctor's own statements.12 However, the fact that Dr. Heile made several positive findings (that Plaintiff's bipolar disorder improved after medication (Tr. 22), Plaintiff could handle management of his diabetes (Tr. 20), and that Plaintiff exhibited a normal affect in July 2011 (Doc. 22)), does not render Dr. Heile's findings "inconsistent." Dr. Heile saw Plaintiff thirty-seven times; the fact that he made three (rather modest) positive findings does not invalidate his limitations.

Dr. Murthy had been treating Plaintiff since May 20, 1999, and saw Plaintiff twenty-two times. On January 18, 2010, Dr. Murthy completed a Residual Functional Capacity form. (Tr. 503-506, 644-648, 650-651, 738-740). Dr. Murthy diagnosed Plaintiff with severe depression and schizoaffective disorder-depressed. (Id.) Dr. Murthy determined that Plaintiff has severe problems with social interactions, especially with the general public or coworkers/supervisors; has poor concentration, persistence, pace, patchy memory; confusion at times and poor frustration tolerance; is paranoid and withdrawn and has a very poor ability to tolerate stress. (Id.) Dr. Murthy found that Plaintiff was markedly limited in 16 out of 20 areas of social functioning and recommended that Plaintiff's parents handle his benefits.13 (Tr. 503-506). The ALJ found Dr. Murthy's opinion to be conclusory with little explanation and noted that Dr. Murthy had not treated Plaintiff for three years prior to his evaluation. However, the record contradicts these findings. Dr. Murthy's findings were based on medical records from 22 visits, including visits before (2009 and 2010) and after the RFC form was completed on January 18, 2010.

Dr. Delamerced saw Plaintiff six times and on August 18, 2011, opined that Plaintiff was incapable of even "low-stress" jobs and would be absent more than four days per month. (Tr. 696-701). The ALJ determined that Dr. Delamerced's opinions as to the Plaintiff's ability to perform work related activities were entitled to little weight, because specific objective findings are needed to support the level of restriction. However, Dr. Delamerced's objective findings included diabetes blood sugars ranging from 207-424, vitiligo, anxiety, hypertension, back pain, rash on legs and up to groin, right posterior leg punctuate erythematous lesions, and pain in shoulder joint region.

The doctors' longitudinal picture of Plaintiff's medical impairments simply cannot be rejected because of minor inconsistencies and allegations of insufficient objective evidence. In this case in particular, the treating physicians saw Plaintiff a significant number of times over an extended period. 20 C.F.R. § 404.1527(d)(2)(i) ("The longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion.").

Accordingly, the Court finds that the ALJ erred in failing to properly weigh the opinions of Drs. Heile, Murthy, and Delamerced. Contrary to the ALJ's findings, the overwhelming evidence supports a finding of disability.

C.

Next, Plaintiff maintains that the ALJ erred in refusing to consider new evidence from the Bureau of Vocational Rehabilitation ("BVR").

When a party presents new evidence on appeal, the Court can remand for further consideration where the party seeking remand shows that the new evidence is "material." Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 685 (6th Cir.1992). "[R]emand to the SSA for consideration of new evidence is appropriate when there is a reasonable possibility that consideration of the offered evidence would have resulted in a different determination." Huffer v. Heckler, 591 F.Supp. 626 (S.D.Ohio 1984).

Plaintiff went to the BVR seeking help finding a job. However, the BVR determined that Plaintiff could not work full time on a sustained basis, and on February 27, 2012, the BVR closed his file. (Tr. 292-294). The ALJ issued his decision on March 2, 2012. Plaintiff argues that the BVR records are material because they address whether Plaintiff is capable of working full-time. However, decisions by other agencies are not binding upon the Social Security Administration. 20 C.F.R. § § 404.1504, 416.904. Therefore, while the BVR's determination is persuasive, Plaintiff fails to show that there is a reasonable probability that the ALJ would have reached a different conclusion had the evidence been considered. Therefore, a sentence six remand is not required.

D.

Plaintiff maintains that the ALJ erred in failing to properly consider the opinion of Anne Fulton, Psychiatric Mental Health Nurse Practitioner.

Prior to completing a Mental Impairment Questionnaire, Anne Fulton saw Plaintiff thirty-eight times. (Tr. 664-670). While Ms. Fulton is not a physician or psychologist, and thus cannot be considered an "acceptable medical source," she is a treating mental health nurse practitioner who spent extensive time with the Plaintiff. SSR 06-3 provides:

While the adjudicator cannot give "controlling weight" to non "acceptable medical sources" in disability claims, it can give "great" weight to a non-medical source opinion, such as a Psychiatric Mental Health Nurse Practitioner. See SSR 06-03p ("For example, it may be appropriate to give more weight to the opinion of a medical source who is not an `acceptable medical source' if he or she has seen the individual more often than the treating source and has provided better supporting evidence and a better explanation for his or her opinion.").

The ALJ considered Ms. Fulton's opinion and found that she was not a source that could be relied upon for establishing an impairment. However, it is not clear that the ALJ considered each of the relevant factors enumerated by SSR 06-3p.14 Specifically, this Court notes that Ms. Fulton has a professional license issued by the State of Ohio and is qualified to render treatment and medical opinions. She possesses a superior longitudinal knowledge of Plaintiff's record, and her opinions are based upon multiple treatment contacts over a significant period of time. Moreover, her opinions are consistent with the other treating physicians. Accordingly, Ms. Fulton's opinion should have been given some weight.

E.

Finally, Plaintiff argues that the ALJ erred in finding that he did not meet Listings 12.04(A)(2), (B), or (C)(3).

Plaintiff alleges that if the ALJ properly assessed Dr. Murthy and Ms. Fulton's opinions, he would have met or equaled the Listing for 12.04(A)(2) and (B).15 However, the Court finds that the evidence failed to document the required persistence of a depressive syndrome characterized by at least four of the following: (a) anhedonia or pervasive loss of interest in almost all activities; (b) appetite disturbances with change in weight; (c) sleep disturbance; (d) psychomotor agitation or retardation; (e) decreased energy; (f) feelings of guilt or worthlessness; (g) difficulty concentrating or thinking; (h) thoughts of suicide; or (i) hallucinations, delusions, or paranoid thinking. Even when adopting the opinions of Dr. Murthy and Ms. Fulton, Plaintiff fails to evidence a Listing under 12.04(A)(2) and (B).

In the alternative, Plaintiff maintains that he meets Listing 12.04(c)(3), because for one or more years he has been unable to function outside of a highly supportive living environment.16 While the testimony of Plaintiff's father and doctors support a finding that Plaintiff cannot function outside of a highly supportive living arrangement,17 this Court declines to make such a finding, because the evidence supports a finding that Plaintiff cannot complete even sedentary work on a sustained basis.

III.

When, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing or to reverse and order benefits granted. The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).

Generally, benefits may be awarded immediately "only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir.1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir.1987).

The Court may award benefits where the proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir.1985). Such is the case here.

Here proof of disability is overwhelming and remand will serve no purpose other than delay. As fully recited here, in view of the extensive medical record evidencing disability, and the credible and controlling findings and opinions of Drs. Heile, Murthy, Delamerced, and Ms. Fulton, the ALJ failed to meet its burden of finding substantial evidence that Plaintiff is able to engage in substantial gainful activity. Instead, proof of disability is overwhelming.

IT IS THEREFORE ORDERED THAT:

The decision of the Commissioner, that Earl Desantis was not entitled to disability insurance benefits or supplemental security income, is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits from June 1, 2009.18 The Clerk shall enter judgment accordingly, and this case shall be CLOSED.

IT IS SO ORDERED.