MICHAEL J. NEWMAN, Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and therefore unentitled to Supplemental Security Income ("SSI") and/or Disability Insurance Benefits ("DIB").
Plaintiff filed for DIB and SSI alleging a disability onset date of February 8, 2011. PageID 343-55. Plaintiff claims disability as a result of a number of alleged impairments including, inter alia, obesity, diabetes mellitus, sleep apnea, fibromyalgia, left knee degenerative disc disease, depression, anxiety, and post-traumatic stress disorder ("PTSD"). PageID 62.
After initial denial of her applications, Plaintiff received a hearing before ALJ Gregory G. Kenyon on January 4, 2016. PageID 82-140. The ALJ issued a written decision on March 2, 2016 finding Plaintiff not disabled. PageID 60-73. Specifically, the ALJ found at Step Five that, based upon Plaintiff's residual functional capacity ("RFC") to perform a reduced range of light work,
Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 39-44. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely appeal. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
The evidence of record is adequately summarized in the ALJ's decision (PageID 63-73), Plaintiff's Statement of Errors (doc. 11), the Commissioner's memorandum in opposition (doc. 12), and Plaintiff's reply (doc. 13). The undersigned incorporates all of the foregoing and sets forth the facts relevant to this appeal herein.
The Court's inquiry on a Social Security appeal is to determine (1) whether the ALJ's non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742,745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
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 (1971). When 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. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). "[A] decision of the Commissioner will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746.
To be eligible for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
On appeal, Plaintiff argues that the ALJ erred by: (1) failing to properly determine her mental health related limitations (and thus relying upon an incorrect RFC); (2) improperly weighing the opinion evidence, including the opinion of treating physician Carol Barlage, M.D., and treating counselor Stephanie Wilson, L.P.C.; and (3) concluding wrongly that her alleged neuropathy is not a medically determinable impairment. Doc. 11 at PageID 1769-83. Finding error in the ALJ's assessment of Plaintiff's mental health limitations, as well as the ALJ's weighing of Dr. Barlage's opinion, the Court does not address Plaintiff's other alleged errors and, instead, directs that these issues be addressed by the ALJ on remand.
The Commissioner's regulations provide that a claimant's "impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what [he or she] can do in a work setting." 20 C.F.R. § 404.1545(a)(1). An individual's RFC "is the most [he or she] can still do despite [his or her] limitations." Id. While the determination of an RFC is within the ALJ's province, "the RFC is ultimately a medical question that must find at least some support in the medical evidence of record." Powell v. Comm'r of Soc. Sec., No. 3:15-CV-406, 2017 WL 1129972, at *4 (S.D. Ohio Mar. 27, 2017) (citing Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007)). In other words, "[t]he [RFC] opinions of treating physicians, consultative physicians, and medical experts who testify at hearings are crucial to determining a claimant's RFC because `[i]n making the residual functional capacity finding, the ALJ may not interpret raw medical data in functional terms.'" Isaacs v. Astrue, No. 1:08-CV-00828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin v. Commissioner, 605 F.Supp.2d 908, 912 (N.D. Ohio 2008)).
In this case, the ALJ found that Plaintiff had the following RFC:
PageID 65. In determining Plaintiff's mental health limitations in the RFC, the ALJ relied significantly on the opinions of record-reviewing psychologists Joseph Cools, Ph.D. and Patricia Semmelman, Ph.D., whom he gave "great weight." PageID 69.
Specifically, Dr. Cools opined that Plaintiff has moderate limitations
While the ALJ found that Plaintiff is able to have "occasional contact" with others, Plaintiff argues such limitation fails to address the opinions of Drs. Cools and Semmelman, both of whom opined that Plaintiff is only able to interact superficially with others. In other words, while the ALJ found Plaintiff limited with regard to the frequency with which she can interact, he failed to address the fact — based upon the opinions of Drs. Cools and Semmelman — that the nature of her interaction with others must be limited. See PageID 65, 190-91, 207-08, 225-26, 243-44. The undersigned agrees.
An ALJ must meaningfully explain why certain limitations are not included in the RFC determination, especially when such limitations are set forth in opinions the ALJ weighs favorably. See SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996); O'Ryan v. Comm'r of Soc. Sec., No. 3:14-CV-125, 2015 WL 6889607, at *4 (S.D. Ohio July 30, 2015) (string citation omitted). Courts have found error where, as here, an ALJ fails to address a medical source's opinion regarding both the nature and frequency of an individual's ability to interact with others in the workplace. See Walsh v. Colvin, No. 3:15CV1708, 2016 WL 1752854, at *14 (N.D. Ohio May 3, 2016); Gonzalez v. Colvin, No. 1:13-CV-01358, 2014 WL 1333713, at *9 (N.D. Ohio Mar. 28, 2014); Hill v. Colvin, No. 3:14-CV-2073-TLS, 2015 WL 8752361, at *5 (N.D. Ind. Dec. 14, 2015). Absent any explanation as to why a limitation regarding the nature of Plaintiff's interaction with others in the workplace was omitted, the undersigned finds error in the ALJ's RFC determination. Doc. 65.
In addition, the ALJ also failed to address — as opined by Drs. Cools and Semmelman — Plaintiffs' moderate limitation in her ability to complete a normal workday and workweek as a result of her anxiety and depression. See PageID 190, 207, 225, 243. Such omission is error. See Falconi v. Comm'r of Soc. Sec., No. 1:08CV622, 2009 WL 3790176, at *10 (S.D. Ohio Nov. 11, 2009) (the ALJ's limitations, that Plaintiff is able to `perform simple, routine, repetitious work in a low stress environment with no strict production requirement,' do[es] not adequately address the limitation of her ability to complete a normal workday"). Further, such error is notable because the opinions of Drs. Cools and Semmelman in this regard are consistent with the opinions of Plaintiff's treating physician, Dr. Barlage, and her treating mental health counselor, Stephanie Wilson — both of whom opine that, as a result of her mental impairments, Plaintiff would have five or more partial or full day unscheduled absences each month.
In light of the foregoing, the ALJ's non-disability finding is found unsupported by substantial evidence.
The undersigned also finds error in the ALJ's assessment of Dr. Barlage's opinion relating to Plaintiff's mental health limitations — which included the conclusion that Plaintiff would have five or more partial (or full day) absences per month. PageID 1643. The ALJ rejected Dr. Barlage's opinion — set forth in detail supra — because it is "not consistent with [Plaintiff's] very conservative level of mental health treatment"; "there is nothing in [her] records to suggest that [Plaintiff's] anxiety symptoms were not fairly well-managed with medication and counseling"; and because she "is not a mental health professional,[
Until March 27, 2017, "the Commissioner's regulations [that apply to this appeal] establish[ed] a hierarchy of acceptable medical source opinions[.]" Snell v. Comm'r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the regulations in effect prior to March 27, 2017, the opinions of treaters are entitled to the greatest deference because they "are likely to be . . . most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.]" 20 C.F.R. § 404.1527(c)(2).
A treater's opinion must be given "controlling weight" if "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record." LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 384 (6th Cir. 2013). Even if a treater's opinion is not entitled to controlling weight, "the ALJ must still determine how much weight is appropriate by considering a number of factors,[
Here, the ALJ failed to conduct a controlling weigh analysis regarding Dr. Barlage's opinion. PageID 71. Instead, in weighing that opinion, the ALJ focused solely on the factors set forth in 20 C.F.R. §§ 404.1527(c)(2) through (c)(5) factors — i.e., factors addressing the nature of treatment, consistency, supportability, and specialization. These factors, however, are applicable only after the ALJ decides to "not give the treating source's medical opinion controlling weight." 20 C.F.R. § 404.1527(c)(2); see also Gayheart, 710 F.3d at 376 (noting that certain factors are "properly applied only after the ALJ has determined that a treating-source opinion will not be given controlling weight"); Lutz v. Comm'r of Soc. Sec., No. 3:16-CV-210, 2017 WL 3140878, at *3 (S.D. Ohio July 25, 2017), report and recommendation adopted, No. 3:16-CV-210, 2017 WL 3432725 (S.D. Ohio Aug. 9, 2017). The failure to conduct a controlling weight analysis, with regard to Dr. Barlage's assessment of Plaintiff's mental limitations, is reversible error.
When, as here, the ALJ's non-disability determination is unsupported by substantial evidence, the Court must determine whether to reverse and remand the matter for rehearing, or to reverse and order an award of benefits. 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 (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). In this instance, evidence of disability is not overwhelming, and remand for further proceedings — as specifically set forth above — is proper.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
Any objections filed shall specify the portions of the Report and Recommendation objected to, and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs.
A party may respond to another party's objections within
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
