KAREN L. LITKOVITZ, Magistrate Judge.
Plaintiff Erik D. Nordhausen, brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB"). This matter is before the Court on plaintiff's statement of errors (Doc. 9), the Commissioner's response in opposition (Doc. 10), and plaintiff's reply memorandum. (Doc. 11).
Plaintiff filed his application for DIB on July 30, 2015, alleging disability since January 1, 2014 due to delusions, obesity, excessive tiredness and sleepiness, short attention span and sustained focus difficulties, diabetic symptoms, hypertension, stiffness in his back and arm muscles, sleep apnea, gastric reflux, and difficulty with social interactions. The application was denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before administrative law judge ("ALJ") Thuy-Anh T. Nguyen. Plaintiff and a vocational expert ("VE") appeared and testified at the ALJ hearing on December 14, 2017. On May 23, 2018, the ALJ issued a decision denying plaintiff's DIB application. Plaintiff's request for review by the Appeals Council was denied, making the decision of ALJ Nguyen the final decision of the Commissioner.
To qualify for disability benefits, a claimant must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). The impairment must render the claimant unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. § 423(d)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:
Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id.; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).
The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:
(Tr. 15-26).
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance...." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the Commissioner's findings are supported by substantial evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the disability determination. Even if substantial evidence supports the ALJ's conclusion that the plaintiff is not disabled, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746). See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ's decision was otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving weight to treating physician's opinion, thereby violating the agency's own regulations).
On appeal, plaintiff alleges two assignments of error: (1) the ALJ failed to give the opinions of his treating physician controlling weight by misconstruing plaintiff's testimony on the severity of his impairments and the record as a whole, and (2) the ALJ failed to support her finding of "not disabled" with substantial evidence based on the VE's testimony. (Doc. 9).
Plaintiff argues that the ALJ erred by failing to give his treating physician's opinions controlling weight. (Doc. 9 at 3). Plaintiff argues that the ALJ mischaracterized the evidence in the record to justify her reasoning, including plaintiff's self-reports and testimony regarding the severity of his impairments. (Id. at 3-4). Plaintiff also argues that his self-reports and testimony are "not objective medical information within the record, and should have little impact on the opinion of Dr. Garrison as the treating physician." (Id. at 4).
Dr. Jonathan Garrison, M.D., treated plaintiff every three months since 2008. (Tr. 461). Dr. Garrison rendered two opinions on plaintiff's mental functioning. (Tr. 391-96, 461-67). In a January 2016 mental status questionnaire, Dr. Garrison described plaintiff's mental status as follows: adequate appearance; normal flow of conversation and speech; anxious, dysphoric, and constricted mood and affect; guarded and evasive signs, symptoms, and severity of anxiety; paranoid thinking disorders; decreased memory; and minimal insight. (Tr. 391). Dr. Garrison opined that plaintiff was good at remembering, understanding, and following directions; fair at maintaining attention, sustaining concentration, and completing tasks; poor to fair at reacting to change in the work setting; and very poor in the area of social interaction and adaptation. (Tr. 392). Dr. Garrison listed plaintiff's diagnosis as schizoaffective disorder since 2001. (Id.).
In a March 2017 mental impairment questionnaire, Dr. Garrison listed plaintiff's DSM-V Assessment as Schizoaffective Disorder. (Tr. 461). Dr. Garrison indicated that plaintiff's response to his Abilify medication was fair to good. (Id.). Dr. Garrison listed clinical findings demonstrating the severity of plaintiff's mental impairments and symptoms as paranoid delusions, anxious mood, and guarded. (Id.). He described plaintiff's prognosis as "chronic." (Id.). Dr. Garrison identified plaintiff's signs and symptoms as follows: delusions or hallucinations; depressed mood; diminished interest in almost all activities; appetite disturbance with change in weight; observable psychomotor agitation or retardation; decreased energy; irritability, involuntary, time-consuming preoccupation with intrusive, unwanted thoughts; distrust and suspiciousness of others; detachment from social relationships; disturbance in mood or behavior; and disproportionate fear or anxiety about at least two different situations (for example, using public transportation, being in a crowd, being in a line, being outside his/her home, being in open spaces). (Tr. 462). Dr. Garrison opined that plaintiff was "seriously limited" (defined as having noticeable difficulty (e.g., distracted from job activity) from 11 to 15% of the workday or work week) in his ability to perform the following unskilled work-related activities: perform at a consistent pace and accept instructions and respond appropriately to criticism from supervisors. (Tr. 463). Dr. Garrison further opined that plaintiff was "unable to meet competitive standards" (defined as having noticeable difficulty (e.g., distracted from job activity) from 16 to 25% of the workday or work week) in his ability to perform the following unskilled work-related activities: deal with normal work stress and respond appropriately to changes in routine work settings. (Id.). Overall, Dr. Garrison opined that plaintiff had no limitations in understanding, remembering, and applying information; moderate limitations in his ability to interact with others and concentrate, persist, or maintain pace; and marked limitations in his ability to adapt or manage himself. (Tr. 465). Dr. Garrison further opined that plaintiff's impairments would cause him to miss about three days of work per month. (Tr. 466).
The ALJ afforded Dr. Garrison's January 2016 opinion "partial" weight. (Tr. 23). The ALJ noted that Dr. Garrison was familiar with plaintiff's symptoms and impairments, and his diagnosis of schizoaffective disorder and paranoid delusions were consistent with his opinion. (Id.). However, the ALJ noted that Dr. Garrison's opinion was inconsistent with plaintiff's self-report of functioning, where he reported getting along well with people, socializing with family, cooking for himself, managing his own finances, and going shopping alone. (Id.). The ALJ also noted that Dr. Garrison's opinion that plaintiff had decreased memory and minimal insight was inconsistent with his opinion that plaintiff is good at remembering, understanding, and following directions. (Id.) (citing Tr. 391).
The ALJ also afforded Dr. Garrison's March 2017 opinion "partial" weight. (Id.). The ALJ noted that the degree of limitation suggested by Dr. Garrison in this opinion was more extreme than supported by the records and plaintiff's activities of daily living. (Id.). The ALJ explained that Dr. Garrison's opinion that plaintiff had marked limitations in adapting and serious limitations in travelling to an unfamiliar place was inconsistent with plaintiff's self-reports that he drives, shops alone, and attends cookouts and treatment notes indicating that he travelled to India and Las Vegas with his mother. (Id.). The ALJ further explained that Dr. Garrison's opinion that plaintiff had decreased memory and minimal insight was not entirely consistent with his opinion that plaintiff had mild or no limitations in understanding and memory. (Id.).
It is well-established that the findings and opinions of treating physicians are entitled to substantial weight. "In general, the opinions of treating physicians are accorded greater weight than those of physicians who examine claimants only once." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529-30 (6th Cir. 1997). See also Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985) ("The medical opinions and diagnoses of treating physicians are generally accorded substantial deference, and if the opinions are uncontradicted, complete deference."). "Treating-source opinions must be given `controlling weight' if two conditions are met: (1) the opinion `is well-supported by medically acceptable clinical and laboratory diagnostic techniques'; and (2) the opinion `is not inconsistent with the other substantial evidence in [the] case record.'" Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). If the ALJ declines to give a treating source's opinion controlling weight, the ALJ must balance the factors set forth in 20 C.F.R. § 404.1527(c)(2)-(6) in determining what weight to give the opinion. See Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. These factors include the length, nature and extent of the treatment relationship and the frequency of examination. 20 C.F.R. § 404.1527(c)(2)(i)-(ii); Wilson, 378 F.3d at 544. In addition, the ALJ must consider the medical specialty of the source, how well-supported by evidence the opinion is, how consistent the opinion is with the record as a whole, and other factors which tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
"Importantly, the Commissioner imposes on its decision makers a clear duty to `always give good reasons in [the] notice of determination or decision for the weight [given a] treating source's opinion.'" Cole, 661 F.3d at 937 (citation omitted). See also Wilson, 378 F.3d at 544 (ALJ must give "good reasons" for the ultimate weight afforded the treating physician opinion). Those reasons must be "supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Cole, 661 F.3d at 937. This procedural requirement "ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule." Gayheart, 710 F.3d at 376 (quoting Wilson, 378 F.3d at 544).
The ALJ gave valid reasons for affording Dr. Garrison's opinions less than "controlling weight" and only "partial" weight and those reasons are substantially supported by the evidence of record. Contrary to plaintiff's argument, the ALJ thoroughly reviewed both the objective and subjective evidence of record and provided good reasons for giving Dr. Garrison's opinions less than "controlling weight." The ALJ recognized that plaintiff treated with Dr. Garrison since 2008 with therapy sessions every three months. (Tr. 21). Nevertheless, the ALJ reasoned that Dr. Garrison's treatment notes and plaintiff's self-reported symptoms were not entirely consistent with the degree of functional limitations alleged. (Tr. 22). The ALJ considered the inconsistency of Dr. Garrison's treatment notes both prior to plaintiff's alleged onset date and after. (Tr. 21-22). The ALJ noted that prior to the alleged onset date, treatment notes generally reflected that his schizoaffective disorder and mood were stable. (Tr. 21). In November 2015, Dr. Garrison noted that plaintiff was more paranoid and evasive, and he presented with persecutory delusions and frustration from past slights against him. (Id.) (citing Tr. 397). However, by February 2016 (notably, after Dr. Garrison completed the January 2016 mental status questionnaire), plaintiff's dosage of Abilify was increased and he was less agitated and irritable. (Tr. 21) (citing Tr. 534). The ALJ noted that in May 2016, plaintiff continued to reject different medication options or dose changes. (Tr. 22). Plaintiff continued to display persecutory delusions but had a euthymic mood with partial insight and good judgment. (Id.). Dr. Garrison noted that plaintiff's schizoaffective disorder remained stable. (Tr. 534). The ALJ reasonably determined that "[t]he infrequency of the [plaintiff]'s therapy and rejection of more aggressive treatment is not entirely consistent with the degree of functional limitations alleged." (Tr. 22).
The ALJ further considered that by August 2016, plaintiff reported going on vacations and meeting friends with little difficulty. (Tr. 22) (citing Tr. 535). Treatment notes from February 2017 indicated that plaintiff's mood and behavior at home were manageable; therefore, he rejected increased medication to help with paranoia. (Tr. 535). Despite opining in the March 2017 report that plaintiff had a marked functional limitation in his ability to adapt or manage himself (defined by the questionnaire as an ability to regulate emotions, control behavior, and maintain well-being in a work setting), Dr. Garrison's treatment notes from May 2017 indicated that although plaintiff's paranoid thoughts were still present, his episodes of agitation and upset were infrequent, with "only one episode of extended upset and agitation since last seen [in February 2017], and there was no destruction or aggression as part of this episode." (Tr. 22) (citing Tr. 546). Plaintiff has not cited any objective evidence to demonstrate that his mental limitations are consistent with Dr. Garrison's opinions. The lack of corroborating mental status examination findings is a valid reason to discount the treating psychiatrist's opinion. See Norris v. Comm'r of Soc. Sec., 461 F. App'x 433, 439 (6th Cir. 2012) ("Any record opinion, even that of a treating source, may be rejected by the ALJ when the source's opinion is not well supported by medical diagnostics....") (citing 20 C.F.R. § 416.927; Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010)).
In addition to considering that Dr. Garrison's own treatment notes were inconsistent with his opinions, the ALJ reasonably found that plaintiff's self-reports and daily activities were inconsistent with Dr. Garrison's opinions. See Monroe v. Colvin, 989 F.Supp.2d 612, 622 (S.D. Ohio 2013) (upholding ALJ's decision declining to give controlling weight to treating physician because it was inconsistent with plaintiff's reported daily activities). In January 2016, Dr. Garrison opined that plaintiff functioned poorly in the areas of social interaction and adaptation. (Tr. 392). Likewise, in March 2017, Dr. Garrison opined that plaintiff had marked limitations in his ability to adapt and manage himself. (Tr. 465). However, plaintiff reported being able to do a variety of daily activities inconsistent with the functional limitations assessed by Dr. Garrison, including cooking meals, reading, walking, watching TV, talking with his mother and brother, vacuuming, doing dishes, and taking out the garbage. (Tr. 22) (citing Tr. 221-29; 271-78). Plaintiff also reported driving, shopping alone, handling his own finances, maintaining an aquarium, going to cookouts, visiting with friends, and travelling with his mother. (Id.).
Plaintiff argues that this information is "inherently unreliable due to the claimant suffering from schizoaffective disorder and delusions." (Doc. 9 at 4). Plaintiff cites to his testimony at the hearing that he believes voices that he hears are real and therefore "in his mind, he is not behaving irrationally." (Id.) (citing Tr. 51). Plaintiff argues that the ALJ failed to consider this testimony. (Id.). However, contrary to plaintiff's argument, the ALJ considered this testimony and recognized that it was unsupported by treatment notes, which never indicated that plaintiff heard voices or had auditory hallucinations. (Tr. 22). In his reply brief, plaintiff argues that "a reasonable mind would not accept the self-reporting of a claimant who suffers from delusions over his treating doctor." (Doc. 11 at 2). Plaintiff, however, has failed to cite to objective medical evidence or a medical opinion from Dr. Garrison or other physician to support the argument that he misrepresented information about his ability to perform daily activities as a result of his schizoaffective disorder. In any event, the ALJ appropriately declined to give controlling weight to Dr. Garrison's opinions based on the lack of supportability and consistency with Dr. Garrison's own treatment notes, not solely based on plaintiff's reported activities.
Plaintiff also argues that the ALJ misconstrued his reported activities, including shopping alone, driving, going to cookouts, and travelling with his mother. (Doc. 9 at 5). Plaintiff argues that he neither performed these activities on a sustained basis or independently as would be comparable to performing a range of activities in a work setting. (Id.). However, the ALJ cited these activities as inconsistent with Dr. Garrison's opinion that plaintiff had marked limitations in adapting and serious limitations in travelling to an unfamiliar place. In addition, to the extent the ALJ may have "misconstrued" any limitations resulting from plaintiff's reported activities, the ALJ accommodated these limitations in the mental RFC. The ALJ limited plaintiff's mental RFC to: "capable of simple, routine tasks that do not require fast paced or high production standards. He can occasionally interact with supervisors and coworkers but cannot interact with the general public. He is limited to low stress jobs, defined as those with occasional decision-making and occasional changes in the work setting, with changes explained in advance. He will be off-task 5-10% of the work day." (Tr. 19). Plaintiff has not demonstrated how this RFC fails to accommodate his mental limitations.
Finally, while the ALJ's decision does not reflect an extensive analysis of the regulatory factors set forth in 20 C.F.R. § 404.1527(c)(2)-(6), the regulations require only that an ALJ's decision include "`good reasons ... for the weight give[n] [to the] treating source's opinion'— not an exhaustive factor-by-factor analysis." Francis v. Comm'r Soc. Sec. Admin., 414 F. App'x 802, 804 (6th Cir. 2011) (citing Wilson, 378 F.3d at 547). See also Guinn v. Comm'r of Soc. Sec., 555 F.Supp.2d 913, 920 (S.D. Ohio 2008) (ALJ's failure to mention regulatory factors may qualify as harmless error if the ALJ provided "specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and [was] sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.") (quoting Wilson, 378 F.3d at 544). Here, the ALJ's decision reflects a consideration of the regulatory factors, albeit not explicitly. The ALJ considered Dr. Garrison's length of treatment relationship and frequency of examination with plaintiff. (Tr. 21). The ALJ also considered the consistency and supportability of Dr. Garrison's opinions with the record as a whole, including his own treatment notes and plaintiff's self-reported activities. Accordingly, the Court finds that the ALJ complied with the requisite two-step inquiry and gave "good reasons" for assigning Dr. Garrison's opinions "partial weight." Plaintiff's first assignment of error should be overruled.
At Step Five of the sequential evaluation process, the burden shifts to the Commissioner "to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile." Jones v. Comm'r of Soc. Sec, 336 F.3d 469, 474 (6th Cir. 2003). The Commissioner may meet his burden of identifying other work the claimant can perform through reliance on a VE's testimony in response to a hypothetical question. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). "In order for a vocational expert's testimony in response to a hypothetical question to serve as substantial evidence in support of the conclusion that a claimant can perform other work, the question must accurately portray a claimant's physical and mental impairments." Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010).
In this case, the ALJ relied on the testimony of the VE to find that plaintiff could perform a substantial number of unskilled jobs given an RFC that limited plaintiff to "simple, routine tasks that do not require fast paced or high production standards"; occasional interaction with supervisors and coworkers but no interaction with the general public; and low stress jobs, defined as those with occasional decision-making and occasional changes in the work setting, with changes explained in advance, on the assumption he "will be off-task 5-10% of the workday." (Tr. 19, 61-63).
At the hearing, the ALJ asked the VE what jobs a hypothetical person with plaintiff's vocational background and RFC could perform. (Tr. 60-62). In response, the VE gave the representative unskilled jobs of linen room attendant, janitor, and dishwasher. (Tr. 61-62). During her questioning, the ALJ specifically asked the VE, consistent with her RFC finding, whether an individual could perform these jobs if they were off task 5-10% of the workday. (Tr. 62-63). The VE answered that this limitation would not affect the number of jobs available in the national economy. (Id.).
On cross-examination, plaintiff's attorney asked the VE a hypothetical question based on specific limitations set forth in Dr. Garrison's 2017 report. Dr. Garrison was asked to rate plaintiff's limitations on the ability to perform 14 mental abilities and aptitudes needed to do unskilled work. (Tr. 463). Dr. Garrison stated that plaintiff's ability to perform seven mental abilities and aptitudes for unskilled work was "limited but satisfactory," which was defined as the patient "has noticeable difficulty (e.g., distracted from job activity) no more than 10% of the workday or work week." These seven abilities include the ability to: remember work-like procedures; maintain attention for a two-hour segment; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; complete a normal workday and workweek without interruptions from psychologically based symptoms; ask simple questions or request assistance; and get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes. (Tr. 463). Plaintiff's attorney asked the VE to assume an individual would be distracted no more than 10% of the workday or workweek from performing these seven abilities and aptitudes. In response, the VE stated that such an individual would be unable to perform competitive work. The colloquy included the following discussion:
(Tr. 65-66) (emphasis added).
Plaintiff argues that the ALJ's Step Five finding is not supported by substantial evidence because her decision relies on VE testimony that is contradictory on the issue of whether an individual who is "off task" 10% of the work day or work week can perform a substantial number of unskilled jobs. (Doc. 9 at 6). Plaintiff argues that in response to the ALJ's questioning, the VE testified that being off task for 10% of the work day was near the acceptable limit for unskilled work. (Id. at 7) (citing Tr. 62-63). Plaintiff argues that this answer is inconsistent with the VE's response to his attorney's question, which indicated that an individual with unskilled work abilities who was distracted no more than 10% of the workday or workweek would be limited essentially to a sheltered work environment. (Id.).
The Commissioner argues that the ALJ was not required to incorporate the VE's response to the work-related limitations asked by plaintiff's attorney because these limitations came directly from Dr. Garrison's March 2017 opinion, which the ALJ afforded only "partial weight." (Doc. 10 at 9).
In this case, the ALJ erred in relying on the VE's testimony at Step Five of the sequential evaluation process. The VE's testimony in response to the ALJ's hypothetical question directly contradicts the VE's testimony in response to the question posed by plaintiff's attorney on whether a hypothetical individual who is off task no more than 10% of the workday can perform a significant number of unskilled jobs.
Program Operations Manual System ("POMS")
POMS DI 25020.010(B)(3).
The ALJ's hypothetical question asked whether there would be unskilled jobs for an individual with plaintiff's profile who was limited to, inter alia, simple, routine tasks, i.e., unskilled work.
In determining whether this matter should be reversed outright for an award of benefits or remanded for further proceedings, the undersigned notes that all essential factual issues have not been resolved in this matter. Faucher v. Sec'y of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994). This matter should be reversed and remanded for further proceedings. On remand, the ALJ should address and resolve the inconsistencies in the VE's testimony on plaintiff's ability to perform unskilled work give the 10% "off task" limitation set forth in the RFC.
The decision of the Commissioner be
Pursuant to Fed. R. Civ. P. 72(b),
