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finding error in the ALJ's discounting of specific functional restrictions in the opinions of treating physicians contained in ODJFS forms simply because they were contained in ODJFS forms
Summary of this case from Jackson v. Comm'r of Soc. Sec.Opinion
Case No. 3:13-cv-40
11-25-2013
JUSTIN CLEMMER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED;
(2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF
AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB") and supplemental security income ("SSI"). (See Administrative Transcript at ("Page ID") (PageID 46-60) (ALJ's decision)).
I.
Plaintiff filed an application for DIB on July 29, 2011 and on August 16, 2011 he filed an application for SSI, alleging disability as of December 31, 2010. (PageID 221-33). Plaintiff alleges disability due to the residuals from ankle fractures, chronic cervical strain, vertebrae fractures, obesity, depressive disorder, anxiety disorder, and polysubstance dependence. Plaintiff's disability applications were denied initially and on reconsideration. (PageID 123-124, 151-52). On September 14, 2012 Plaintiff appeared with counsel and testified at a hearing before the ALJ. (PageID 57-93). A vocational expert also testified. (PageID 86-91).
On September 24, 2012, the ALJ denied Plaintiff's disability claim. (PageID 4051). The ALJ found that Plaintiff had not performed substantial gainful activity since his alleged onset of disability, and had severe impairments, but none of them, alone or in combination, met or equaled the criteria of the Listings. (PageID 43-45). The ALJ found that Plaintiff was unable to perform his past relevant work, but a significant number of other jobs identified by the vocational expert accommodated his restrictions and vocational profile, and therefore he was not disabled. (PageID 49-51). On December 21, 2012, the ALJ's decision became final when the Appeals Council denied Plaintiff's request for review. (PageID 33-36). Plaintiff seeks judicial review under 42 U.S.C. Sections 405(g) and 1383(c)(3).
Plaintiff was thirty-three years old at the time of the administrative hearing. (PageID 62). He attended school through the eleventh grade and subsequently earned his GED. (Id.) His past relevant work includes working as a fast food worker, a production assembler, a dishwasher, and a grounds keeper. (Tr. 87).
Social Security defines past relevant work as work done within the past fifteen years, at substantial gainful activity levels, and performed long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.(PageID 43-51).
2. The claimant has not engaged in substantial gainful activity since December 31, 2010, the alleged disability onset date (20 CFR 404.1571 et seq., and 416.971 et seq).
3. The claimant has the following severe impairment: the residuals of remote fracture of both ankles; chronic cervical strain; compression fractures of the L2 and L3 vertebrae; exogenous obesity; major depressive disorder; generalized anxiety disorder; and polysubstance dependence.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Giving the claimant the full benefit of doubt with regard to his allegations and subjective complaints, it is found that he is limited to jobs that would not require climbing ladders, ropes, or scaffolds. He is further limited to work that would require no more than frequent kneeling and occasional squatting. He should not be expected to perform tasks that would require stooping. He is restricted to jobs that would afford him the opportunity to alternate between sitting and standing at intervals of one-hour. He is further restricted to simple, one- and two-step tasks that would require little, if any, concentration. He is limited to low stress work that would not involve over-the-shoulder supervision. He should not be expected to perform tasks that would require exposure to hazards or extreme cold. He is further limited to jobs that would require no more than limited contact with supervisors and co-workers. He is restricted to tasks that would not require teamwork. He is further restricted to jobs that would not require direct dealing with the public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on September 25, 1978, and was 32 years old, which is defined as a "younger individual age 18-49," on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not he has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering his age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 31, 2010, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to DIB or SSI. (PageID 51).
On appeal, Plaintiff argues that: (1) the ALJ erred by failing to attribute significant weight to opinions from Plaintiff's treating sources; (2) the ALJ erred by unreasonably discounting opinion evidence simply because it was generated as part of an application for state welfare benefits; (3) the ALJ erred in finding Plaintiff not credible; and (4) the ALJ erred by mischaracterizing the evidence of record, particularly Plaintiff's daily activities. 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 (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:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."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:
1. Claimant's testimony and background
Plaintiff testified that his last job had been working part time at McDonalds. (PageID 63). He quit that job because he was "falling to pieces," getting angry, and trying to fight with others. (Id.) He was arguing with other employees, threatening to beat them up, and calling them worthless. (PageID 84). When asked by the ALJ why he could not go back and do the types of work he had done in the past, Plaintiff explained: "My psychological problems have kind of screwed me up a little bit and I'm scared I'll do something stupid or hurt somebody. And then my pain and I don't think I could handle any labor like the - I have a hard time taking the trash out." (PageID 74).
Plaintiff described dealing with significant pain in both ankles as a result of reconstructive surgery with the implantation of hardware in 2005. (PageID 63, 71-72). Though the pain has been present since the surgery, it has been progressively worsening. (PageID 63). Although he is able to walk on his ankles, it is painful and he relies on a cane most of the time and a left ankle brace three or four days per week. (PageID 65). He had been trying to see an orthopedic specialist, but was having difficulties due to his insurance. (PageID 63). His medication helps, but only to the extent that it keeps Plaintiff from crying about the pain. (PageID 72).
Back pain occasioned by compression fractures also limits Plaintiff's activities. (PageID 66, 72-73). He sees a chiropractor for his back, but it does not seem to help. (PageID 66). He suffers from similar pain in his neck. (PageID 67). Plaintiff's back and neck pain travels into his arms. (PageID 72-73). He is never really comfortable, but lying down is better for him than sitting or standing. (PageID 73). He lies down approximately ten times per day for about ten minutes each time to alleviate his pain. (PageID 84). Despite taking a sleep aid, his sleep is still often limited. (PageID 73). Plaintiff estimated that he could sit or stand for only half an hour and could lift only approximately ten pounds. (PageID 74).
Much of Plaintiff's testimony at the hearing centered upon his mental impairments and symptoms. He explained that he has significant issues with paranoia, mood swings, and depression. (PageID 67-70). His depression causes him to think about killing himself or others on a daily basis and has resulted in approximately ten suicide attempts over the course of the six years leading up to his hearing. (PageID 68, 80, 85). Anger control is also a problem for Plaintiff and he has been fired from jobs in the past. (PageID 68-69). Plaintiff explained:
Yeah, I get real bad mood swings. Like I'll be happy one minute and then I'll be ready to kill somebody the next. I have to walk away from people. And I get real paranoid, I get paranoid at my house where I'm by myself and I have to end up pulling, pulling a pocket knife out and laying it beside me because it sounds like somebody's in my apartment.(PageID 70).
When Plaintiff was a child, his step father would get drunk and abuse him. (PageID 82). Plaintiff still has recurrent flashbacks and nightmares where he relives this abuse. (Id.) Oftentimes these recollections, which can occur multiple times per week, alter Plaintiff's mood and he isolates himself to avoid confrontations with others. (PageID 83). When he is having a bad time with his mental health, he will "turtle up" for three or four days and neither leave his home nor complete household chores. (Id.)
Plaintiff also spoke about his mental health treatment. He attends therapy sessions twice a month and sees his psychiatrist, Dr. Sheppard, once every three months. (PageID 69). Plaintiff described Dr. Sheppard's treatment as "pretty good" testifying that, "[s]he actually pays attention to me." (PageID 84).
2. Medical evidence of record
In April 2005, Plaintiff fell from a second story balcony and fractured both his right tibia and left ankle requiring surgical fixation of both his lower extremities with the implantation of hardware. (PageID 354-55, 607-22). Plaintiff's last follow up appointment with his surgeon was in June 2005, at which time the surgeon noted Plaintiff was still walking with a cane and suffering from left ankle pain and swelling. (PageID 350-51). The surgeon had no immediate plans for further surgical intervention and Plaintiff was to enter the care of Dr. Kay. (Id.) On June 21, 2006, Plaintiff twisted his left ankle resulting in pain sufficient to bring him to the emergency room. (PageID 370-74). X-rays at that time revealed that his fixation screw was still in place, however, some degenerative spurring at the ankle joint was also noted. (PageID 374).
On August 13, 2006, Plaintiff presented to Atrium Medical Center for an episode of suicidal ideation where he cut his wrists with a razor blade. (PageID 653-78). Following an unsuccessful attempt to flee the medical center, Plaintiff was psychiatrically hospitalized until August 25, 2006. (PageID 653).
In September 2006, Plaintiff began mental health treatment at South Community Behavioral Health. (PageID 422). During his initial assessments at South Community, it was noted that Plaintiff was experiencing frequent homicidal thoughts toward random strangers, daily suicidal thoughts, racing thoughts, panic attacks, poor concentration, and difficulties with authority figures. (PageID 418, 428-29). He was diagnosed with bipolar disorder, PTSD, panic disorder, and poly-substance dependence in full remission. (PageID 409, 416, 419, & 442). He was assigned GAF scores between 40 and 50. (Id.) Mental status examination in September of 2006 revealed Plaintiff to be mistrustful, withdrawn, intense, agitated, obsessional, depressed, anxious, and impulsive with racing thoughts, a flat affect, and impaired attention and concentration. (PageID 432).
The Global Assessment of Functioning ("GAF") is a numeric scale (0 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. A score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).
At the end of October of 2006, shortly after starting treatment at South Community, Plaintiff was hospitalized at the Kettering Memorial Hospital for four days following a suicide attempt. (PageID 361-69). He underwent another psychiatric hospitalization, this time at Miami Valley Hospital ("MVH") for suicidal ideation, from November 4-6, 2006. (PageID 589-606). On January 23, 2007, after expressing suicidal ideation with a plan to hang himself, Plaintiff was back at MVH. (PageID 569-85). Plaintiff admitted that he was having dreams of killing people and complained of a history of hallucinations. (PageID 569, 575).
Plaintiff was also psychiatrically hospitalized for suicidal ideation at Miami Valley Hospital from October 2-15, 2003. (PageID 623-39).
In May 2007, Plaintiff reported to Dr. Songer at South Community that he was struggling with significant suicidal/homicidal intent and was hearing auditory hallucinations. (PageID 437-38). Dr. Songer attempted to adjust Plaintiff's medication, but advised him to go to the emergency room if the problems worsened. (PageID 438). Ultimately, the medication changes were ineffective and Plaintiff presented to the Kettering Hospital emergency room. (PageID 379-402). He was diagnosed with severe major depressive disorder with psychotic features and was admitted to the psychiatric ward for nine days. (Id.) While at the hospital, Plaintiff again described experiencing auditory hallucinations in the form of unexplained whispering he could not understand and commands instructing him to kill himself. (PageID 380, 388). Shortly after this inpatient hospitalization, South Community lost contact with Plaintiff. (PageID 409-10).
Plaintiff reported to MVH on September 18, 2008 after an unsuccessful attempt at hanging himself from a tree the night before. (PageID 512-37). He explained that he felt suicidal all the time and had recently been drinking excessively. (PageID 514). Recorded symptoms included problems with sleep, fluctuating energy levels, concentration problems, reduced appetite, and generalized anxiety symptoms such as excessive worry, restlessness, fatigue, and muscle tension. (Id.)
Plaintiff was again psychiatrically held for seventy-two hours at the beginning of September 2009 at Atrium Medical Center. (PageID 710-34). On the back of allegations of recurring suicidal ideation, Plaintiff was diagnosed with major depression, a generalized anxiety disorder, and polysubstance abuse. (PageID 719). He was significantly agitated. (PageID 715, 721). The emergency room attendants also noted burn marks where Plaintiff had put out cigarettes on his arms two or three days prior to his admission. (PageID 717).
On March 3, 2011, following an assault on a police officer, the Montgomery County Adult Probation office referred Plaintiff to Samaritan Behavioral Health ("SBH") for a psychiatric evaluation. (PageID 458). The professionals at SBH recorded mental health symptoms including suicidal thoughts, daily crying spells, racing thoughts, and anger outbursts. (PageID 463-66). Ultimately, SBH diagnosed Plaintiff with severe bipolar disorder as well as alcohol and cannabis dependence before referring him to ongoing treatment at Eastway and Nova House. (PaegID 467).
In May 2011, Plaintiff underwent his mental health assessment through Eastway for admission into inpatient psychiatric and alcoholism treatment through the Nova House. (PageID 445, 453). The professionals at Eastway believed Plaintiff's symptoms were more consistent with diagnoses of PTSD and a borderline personality disorder than bipolar disorder. (PageID 445). Plaintiff continued to have problems with daily agitation and anger despite his medication, as well as PTSD symptoms and nightmares. (PageID 447, 449). His mood was observed to be both depressed and anxious while his affect was constricted. (PageID 450). Through June 2011, Plaintiff resided at the Nova House. (736-822, 824-922). He complained to his treatment providers there of his ankle and back pain for which was provided medication. (PageID 744-50, 758-60, 829-31, 835, 844, & 920-22). By his discharge from residential treatment on July 2, 2011, there had been some improvement in Plaintiff's mental state, however, his bipolar disorder remained severe. (PageID 824-25).
After his discharge from Nova House, Plaintiff began mental health treatment with Dr. Jeannine Sheppard and a therapist at Eastway and remained under Dr. Sheppard's care through the date of his hearing. (PageID 990-1042). Treatment notes from this time period reflect Plaintiff was still struggling significantly with thoughts of suicide and problems controlling his anger. (PageID 993, 997, 1003, 1006, 1021-24, 1037, 1039, 1041). Plaintiff reported that he was burning himself due to feeling overwhelmed by sadness. (PageID 1039). Mental status exams from these notes record Plaintiff's slowed activity, his constricted affect, and impaired attention. (Tr. 1017, 1033). He continued to feel "sad all the time" despite his medication. (PageID 1010). Treatment notes from Dr. Sheppard's office also reflect Plaintiff having difficulty maintaining sobriety in light of his depression and stressors. (PageID 1010, 1024, 1028).
On June 13, 2011, Plaintiff presented at the MVH emergency room with complaints of back pain following an earlier altercation. (PageID 493-511). Imaging revealed compression fractures of Plaintiff's L2 and L3 upper endplates and a slight levocurvature of his spinal column at those levels. (PageID 497). Plaintiff subsequently established care at the Good Samaritan Homeless Clinic for his back and ankle pain on August 15, 2011. (PageID 695). Plaintiff's initial examination revealed decreased range of motion in Plaintiff's right ankle as well as tenderness, pain, and spasm in his lumbar spine. (PageID 697). Plaintiff returned to MVH with complaints of back and ankle pain on February 15, 2012. (PageID 927-35). The diagnoses were a left ankle sprain and lumbar spine strain. (PageID 931). Plaintiff continued to complain of ankle and low back pain in treatment appointments with the Samaritan Homeless Clinic through the date of his hearing. (PageID 936-47).
On May 21, 2012, Plaintiff was once again admitted for psychiatric inpatient treatment at MVH. (PageID 948-89). He was brought to MVH by the police after he reported three unsuccessful suicide attempts and an assault to his therapist. (PageID 950). He was diagnosed with major depressive disorder, generalized anxiety disorder, and poly-substance dependence in full sustained remission. (PageID 948). The hospitalization lasted eight days. (Id.)
The final piece of evidence in the record consists of x-rays of Plaintiff's cervical and lumbar spine from July 16, 2012. (PageID 1052). This imaging revealed that the curvature of Plaintiff's cervical spine is reversed and there is rotation at the C4, C5, C6, and C7 vertebral levels. (Id.) Additionally, the compression fractures at L1 and L2 were again visualized. (Id.) Finally, the x-ray revealed that there is a discrepancy in the length of Plaintiff's legs with his left being shorter than his right. (Id.)
3. Opinion evidence of record
The earliest opinion in the record comes from Dr. Bruce Kay. (PageID 646-47). On an Ohio Department of Job and Family Services form dated August 10, 2005, Dr. Kay opined that Plaintiff is "unemployable" as a consequence of the residuals of his bilateral ankle fractures. (PageID 646). He explained that Plaintiff can lift a maximum of five pounds and can only sit throughout an eight hour day "with [his] feet elevated." (Id.) He further opined that Plaintiff can be on his feet for only thirty minutes out of an eight hour workday and is "markedly limited" in his ability to push or pull and "extremely limited" in his ability to perform repetitive foot movements. (Id.)
On July 19, 2011, treating physician Dr. Sheppard completed a mental functional capacity evaluation of Plaintiff for the Ohio Department of Job and Family Services. (PageID 643-45). In that assessment, Dr. Sheppard opined that Plaintiff is "markedly limited" in a number of vocationally significant areas including his ability to perform activities within a schedule, maintain regular attendance, be punctual, work in proximity to others, and accept instructions and respond appropriately to criticism from supervisors. (PageID 644). Ultimately, Dr. Sheppard opined that Plaintiff is "unemployable." (Id.)
On October 3, 2011, state agency consultant Caroline Lewin, Ph.D., reviewed the evidence of record and assessed Plaintiff's mental residual functional capacity. (PageID 105-07). Dr. Lewin opined that Plaintiff was no more than "moderately limited" in any mental functional area. (Id.) Despite his history of violent altercations, workplace terminations, and psychiatric hospitalizations, Dr. Lewin also found that Plaintiff was "not significantly limited" in his ability to maintain socially appropriate behavior. (PageID 106). Ultimately, Dr. Lewin opined that Plaintiff could carry out simple, routine, 1-2 step tasks involving simple decisions, superficial relations with others, occasional changes in routine, and a calm, consistent setting with clear performance expectations and relatively static duties. (PageID 105-06).
The day after Dr. Lewin's review, Social Security sent Plaintiff for an examination with state agency consulting physician Dr. Magnusen. (PageID 702-09). Dr. Magnusen observed that Plaintiff grimaced when he stooped, was unable to squat, and could kneel when holding onto stationary objects for support. (PageID 707-08). He also recorded both tightness and tenderness in Plaintiff's neck. (PageID 708). Dr. Magnusen's report reveals that Plaintiff was "intolerant of" bending at his waist and his heel cords were tight limiting his ability to dorsiflex his ankle. (Id.) Plaintiff's spinal range of motion was limited in multiple planes. (PageID 703-04). He believed Plaintiff's lumbar compression fractures were a "relatively recent event" and that his neck and paraspinal back pain were most likely attributable to a chronic myofascial strain. (PageID 708). As far as Plaintiff's ankles, Dr. Magnusen found nothing remarkable in Plaintiff's gait and opined that pain may be limiting his left foot strength. (PageID 709).
Dorsiflexion involves pivoting the toes and ball of the foot upward at the ankle joint.
Ultimately, Dr. Magnusen opined that Plaintiff can sit, stand, or walk eight hours a day with one hour being continuous. (Id.) He also opined that Plaintiff cannot stoop, can occasionally squat, and can frequently kneel. (Id.) In terms of lifting, he limited Plaintiff to twenty pounds. (Id.) He also believed Plaintiff can work around protected heights, frequently climb stairs and ladders, and reach in all directions. (Id.) He did, however, opine that Plaintiff could not tolerate extremely cold environments as they may exacerbate the pain in his ankles. (Id.)
Shortly after Dr. Magnusen issued his report, state agency consultant Dr. Albert reviewed the evidence of record and concluded that Plaintiff was capable of performing a reduced range of light work which involved unlimited pushing or pulling, occasional stooping, and unlimited exposure to hazards among other postural and environmental restrictions. (PageID 103-05). This opinion was adopted by another state agency reviewer in December of 2011. (PageID 132-33). Dr. Lewin's assessment was rubber stamped as well. (PageID 134-36).
On August 8, 2012, treating psychiatrist, Dr. Sheppard, prepared another opinion regarding Plaintiff's mental functioning. (PageID 1049-51). In that opinion, Dr. Sheppard diagnosed Plaintiff with bipolar II disorder, a generalized anxiety disorder, PTSD, a personality disorder, and poly-substance dependence in sustained, full remission. (PageID 1049). He also recorded several of the signs and symptoms occasioned by these conditions including, but not limited to: mood disturbances, panic attacks, paranoia, social withdrawal or isolation, hostility, and irritability. (Id.) Dr. Sheppard explained: "Justin has problems controlling his anger, especially towards men. This interferes with his interactions with others and has resulted in negative life consequences." (PageID 1050).
Dr. Sheppard went on to opine that Plaintiff's impairment or treatment would cause him to be absent from work on average more than three times per month. (PageID 1051). He further opined that Plaintiff has "marked" deficiencies of concentration, persistence, or pace. (Id.) Dr. Sheppard also opined that Plaintiff has "extreme" difficulties in maintaining social functioning. (Id.)
"Marked" was defined in Dr. Sheppard's opinion to mean "more [than] moderate, but less than extreme. A marked limitation may arise when several activities or functions are impaired or even where only one is impaired, so long as the degree of limitation is such as to seriously interfere with the ability to function independently, appropriately, and effectively." (PageID 1051).
4. The vocational expert's testimony
Vocational expert William Braunig classified Plaintiff's prior work as that of a fast food worker and production assembler, both light and unskilled positions, as well as that of a dishwasher and groundskeeper, both medium positions which are unskilled and semi-skilled respectively. (PageID 87). The ALJ described a hypothetical worker to Mr. Braunig experiencing the limitations the ALJ attributes to Plaintiff. (PageID 87-90). Mr. Braunig opined that such a worker could not perform any of Plaintiff's past work, but that there were other light and sedentary occupations which such a worker could perform. (PageID 89-90).
Mr. Braunig also testified that a hypothetical worker who was absent two or more times per month or who was off task fifteen percent of the time would not be able to maintain any of the jobs identified. (PageID 90). He further opined that there would be no competitive work available to a hypothetical worker who was unable to consistently accept and respond appropriately to criticism from a supervisor. (PageID 90-91). Mr. Braunig also explained that there would be "zero tolerance" for an employee who had confrontations with others while at work. (PageID 91).
5. The ALJ's decision
The ALJ found that Plaintiff has not engaged in substantial, gainful activity since his alleged disability onset date. (PageID 43). He further finds that Plaintiff suffers from the severe impairments of the residuals of remote fracture of both ankles; a chronic cervical strain; compression fractures of the L2 and L3 vertebrae; exogenous obesity; major depressive disorder; generalized anxiety disorder; and poly-substance dependence which is in remission. (PageID 43-45).
Exogenous obesity is caused by excessive food intake.
The ALJ's residual functional capacity ("RFC") finding reads:
"Residual functional capacity" is defined as the most a claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a).
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Giving the claimant the full benefit of the doubt with regard to his allegations and subjective complaints, it is found that he is limited to jobs that would not require climbing ladders, ropes, or scaffolds. He is further limited to work that would require no more than frequent kneeling and occasional squatting. He should not be expected to perform tasks that would require stooping. He is restricted to jobs that would afford him the opportunity to alternate between sitting and standing at intervals of one-hour. He is further restricted to simple, one- and two-step tasks that would require little, if any, concentration. He is limited to low stress work that would not involve over-the-shoulder supervision. He should not be expected to perform tasks that would require exposure to hazards or extreme cold. He is further limited jobs that would require no more than limited contact with supervisors and co-workers. He is restricted to tasks that would not require teamwork. He is further restricted to jobs that would not require direct dealing with the public.(PageID 46).
The ALJ concludes that Plaintiff is incapable of returning to his past work, but finds that there are significant numbers of other jobs in the national economy which he can perform. (PageID 49-51).
B.
First, Plaintiff claims that the ALJ erred in failing to properly weigh the opinion of Dr. Sheppard, his treating psychiatrist. As the Sixth Circuit has held:
If the ALJ does not accord controlling weight to the treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of the examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician.Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). Opinions from treating sources such as Dr. Sheppard must be given controlling weight if they are well supported by clinical diagnostic techniques and if they are not inconsistent with other substantial evidence in the case record. 20 C.F.R. § 404.1527(c)(2).
Regarding Dr. Sheppard's 2011 opinion, the ALJ found
With respect to Exhibit 8F, page 2 and 16, [Dr. Sheppard] failed to indicate that the duration of time that the claimant would be unable to work, rendering the form of little value...It is further noted that Mental Functional Capacity Assessments (ODHS 7308) are used by various county welfare departments to determine eligibility for Medicaid benefits. They were not designed, nor were they ever intended to be used, to determine eligibility for disability benefits under the Social Security Act.(Tr. 47-48). However, as discussed infra at Section II.C, the fact that Dr. Sheppard's opinion was prepared as part of an application for county welfare benefits cannot stand as a reason to discredit the opinion. Additionally, Dr. Sheppard's failure to indicate that Plaintiff would be unable to work for more than a year is not conclusive and his August 8, 2012 opinion reflects work preclusive limitations. (PageID 1049-51).
With respect to Dr. Sheppard's 2012 opinion, the ALJ notes that Dr. Sheppard was "still diagnosing alcohol dependence and cannabis use in April 2012" as a reason for rejecting the opinion. (PageID 47). However, even the ALJ found that these dependencies were "in remission." Moreover, Plaintiff's history of substance dependence is not a proper factor for consideration. Gayheart v. Comm'r of Soc. Sec., No. 12-3553, 2013 U.S. App. LEXIS 4865, at *22 (6th Cir. Mar. 12, 2013) ("[A]lcohol abuse is not a factor to be considered in determining the weight to be given to a treating source opinion. See 20 C.F.R. § 404.1527(c)").
The ALJ also claims that Dr. Sheppard's conclusions are "not supported by the treatment records which reflected a positive response to medications and therapy (Exhibit 20F)." (PageID 47). However, Exhibit 20F consists of treatment notes from approximately 25 separate clinical visits from May 2011 through June 2012. (PageID 990-1048). Of the ten times Plaintiff's GAF score was assessed during that time, only twice did it rise to a level of 51 or higher. (Id.) Plaintiff often presented with irritability, anger, aggravation, or even thoughts of hurting or killing others. (PageID 993, 997, 1021, 1023, 1037, 1039, 1041, 1043). During many of these visits Plaintiff also described thoughts of suicide, wishing he were dead, or suicide attempts. (PageID 993, 997, 1002, 1006, 1021, 1039, 1401, 1403). For example: "[Patient] explains that for about 10 days out of every month he feels down and has [suicidal and homicidal intent]" (PageID 997), "[Client] reported that he thinks about the different ways to commit suicide...he thinks about hanging himself or stabbing himself so it looks like a murder" (PageID 1006), "[Client] reported that he thinks about hanging himself...he still gets the urge to pick someone out of a crowd and beat them up." (Tr. 1041). Moreover, Plaintiff's records contain evidence of eight separate psychiatric hospitalizations or emergency room visits which further substantiate Dr. Sheppard's assessment that Plaintiff's mental limitations are disabling. (PageID 361-69, 372-402, 569-85, 589-606, 653-78, 512-37, 710-34, 948-89).
Furthermore, the ALJ summarily accords the opinions of the reviewing physicians "great weight" without any substantive discussion of the support for their opinions. (PageID 46). The ALJ ignores significant problems with the reviewing physicians, such as their lack of access to the entire record, the fact that they never had the opportunity to examine Plaintiff, the cursory nature of the opinions, and the unsupported conclusions finding that Plaintiff can work with the public and has no limitations in maintaining socially appropriate behavior. (PageID 105-107, 134-136).
While the Commissioner notes that Dr. Sheppard only examined Plaintiff every three months and therefore did "not have a significant longitudinal treatment history" (Doc. 12 at PageID 1097), the Commissioner also supports the ALJ's grant of significant weight to the opinions of the state agency's early record reviewers who never met Plaintiff, let alone treated him every three months. (Doc. 12 at PageID 1098-99).
Accordingly, the Court finds that the ALJ's assignment of little weight to Dr. Sheppard's opinions is not supported by substantial evidence.
C.
Second, Plaintiff maintains that the ALJ erred in unreasonably discounting the weight of opinions because they were prepared as part of an application for county welfare benefits.
The ALJ rejected Dr. Sheppard's 2011 opinion and Dr. Kay's 2005 assessment in part by explaining: "It is further noted that Mental Functional Capacity Assessments (ODHS 7308) are used by the various county welfare departments to determine eligibility for Medicaid benefits. They were not designed, nor were they ever intended to be used, to determine eligibility for disability benefits under the Social Security Act." (PageID 46, 48).
In administering the Medicaid program, the Ohio Department of Job and Family Services ("ODJFS") makes disability determinations using Social Security's own standards and process. Ohio Rev. Code § 5101:1-39-3(B)(6) ("The [Centers for Medicare and Medicaid Services] unit determines blindness and disability in accordance with SSA policy. The SSA sets forth a five-step sequential evaluation process for determining whether or not an individual is disabled."). While these forms may not then be "intend[ed] to...determine eligibility for benefits under the Social Security Act," they are certainly intended to determine disability under the Act which was the relevant inquiry before the ALJ. In fact, the forms themselves do not elicit opinions specific to issues of Medicaid eligibility, they evidence medical opinions as to vocationally relevant functional limitations. (PageID 643-47). The ALJ's error was not in failing to adopt the ultimate determination of ODJFS, but in discounting the specific functional restrictions in the opinions from Drs. Kay and Sheppard because those opinions were contained in the ODJFS forms.
To reject such forms because they were prepared as part of Plaintiff's application for Medicaid benefits unduly prejudices impoverished claimants whose physicians may be unwilling to complete multiple redundant opinion forms for different government agencies.
D.
Next, Plaintiff maintains that the ALJ erred in finding him not to be credible.
An "ALJ is not required to accept a claimant's subjective complaints" and may "consider the credibility of a claimant when making a determination of disability." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). An ALJ's credibility determinations about the claimant are to be accorded "great weight, 'particularly since the ALJ is charged with observing the claimant's demeanor and credibility.' However, they must also be supported by substantial evidence." Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007).
See also Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) ("we accord great deference to [the ALJ's] credibility determination").
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The ALJ noted that Plaintiff might be malingering his mental symptoms to enhance his Social Security disability claim. (PageID 47). Specifically, in May 2012, Dr. Belcher, a staff physician at a hospital where Plaintiff was receiving treatment, reported that Plaintiff displayed "over-dramatization" on the day of psychiatric admission to the hospital that suggested Plaintiff may have been malingering some of his symptoms for his Social Security Disability hearing that was coming up. (PageID 951). Plaintiff allegedly told Dr. Belcher that he was upset about staying in the hospital, but stated "[w]ell this will help me get my disability." (PageID 951). However, a single observation from one hospital physician that Plaintiff "may be malingering" is not supported by substantial evidence, which requires a consideration of the evidence as a whole, not cherry picking only those crumbs of evidence which support the ALJ's desired result. Loza v. Apfel, 219 F.3d 393 (5th Cir. 2000).
E.
Finally, Plaintiff claims that the ALJ erred in finding that his daily activities were inconsistent with a finding of disability.
The ALJ noted that Plaintiff was capable of caring for his personal needs such as feeding, dressing, and grooming himself, performing household chores such as washing dishes, sweeping, mopping, vacuuming, and making the bed, preparing meals, grocery shopping, visiting with his children, watching television, and listening to music. (PageID 48 referring to testimony at PageID 74-75, 79-81).
Plaintiff's mental health treatment notes reveal that he has significant suicidal or homicidal thoughts on a recurring basis and isolates himself due to his unpredictably cycling moods. (PageID 993, 997, 1002, 1006, 1021, 1039, 1401, 1403). He similarly described significant disruptive pain in his spine and ankles during appointments with the Samaritan Homeless clinic, occasionally becoming so severe as to necessitate trips to the hospital. (PageID 493-511, 695, 927-47). Moreover, Plaintiff has had many psychiatric hospitalizations and emergency room visits, some of which involved him being placed in police custody. (PageID 361-69, 379-402, 569-85, 589-606, 653-78, 512-37, 710-34, 948-89).
Given these limitations, nothing in the record suggests that Plaintiff could do daily activities on a sustained basis, the relevant consideration for assessing limitations related to mental impairments. Gayheart v. Comm'r, 2013 U.S. App. LEXIS 4865, at * 17 (6th Cir. Mar. 12, 2013) ("These activities would be relevant if they suggested that Gayheart could do something on a sustained basis that is inconsistent with [his treating source's] opinions. But they do not."). Accordingly, the ALJ's determination that Plaintiff's daily activities were inconsistent with a finding of disability is not supported by the record evidence or relevant standard.
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 (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, 772 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. Sheppard and Kay, 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 Justin Clemmer was not entitled to disability insurance benefits and 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.
The Clerk shall enter judgment accordingly, and this case shall be CLOSED.
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Timothy S. Black
United States District Judge