George v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

STEPHANIE GEORGE, : Case No. 3:18-cv-342

:

Plaintiff, :

: District Judge Walter H. Rice

vs. :

Magistrate Judge Sharon L. Ovington

:

COMMISSIONER OF THE SOCIAL :

SECURITY ADMINISTRATION, :

:

Defendant. :

REPORT AND RECOMMENDATIONS1

I. Introduction

In May 2015, Plaintiff Stephanie George applied for Child Disability Benefits

based on her father’s earnings and applied for Child Disability Benefits and Supplemental

Security Income based on her mother’s earnings. Both applications were denied initially

and upon reconsideration. After a hearing, Administrative Law Judge (ALJ) Gregory G.

Kenyon concluded that she was not eligible for benefits because she is not under a

“disability” as defined in the Social Security Act. Plaintiff brings this case challenging

the Social Security Administration’s denial of her applications for benefits.

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the

Commissioner’s Memorandum in Opposition (Doc. #9), Plaintiff’s Reply (Doc. #11), and

the administrative record (Doc. #6).

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for

further proceedings. The Commissioner asks the Court to affirm ALJ Kenyon’s non-

disability decision.

II. Standard of Review

The Social Security Administration provides Supplemental Security Income to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.

City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). The term

“disability”—as defined by the Social Security Act—has specialized meaning of limited

scope. It encompasses “any medically determinable physical or mental impairment” that

precludes an applicant from performing a significant paid job—i.e., “substantial gainful

activity,” in Social Security lexicon. 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at

469-70.

Judicial review of an ALJ’s non-disability decision proceeds along two lines:

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ

are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,

406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.

2007). Review for substantial evidence is not driven by whether the Court agrees or

disagrees with the ALJ’s factual findings or by whether the administrative record

contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741

F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.

2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard

is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to

support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.

Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a

scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241

(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal

criteria—may result in reversal even when the record contains substantial evidence

supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,

651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial

evidence, ‘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 in part

Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47

(6th Cir. 2004)).

III. Background

Plaintiff asserts that she has been under a “disability” since November 23, 2002.

She was thirteen years old at that time and was therefore considered a “younger person”

under Social Security Regulations. See 20 C.F.R. § 416.963(c). She has a high school

education. See id. § 416.964(b)(4).

The evidence of record is sufficiently summarized in the ALJ’s decision (Doc. #6,

PageID #s 40-52, 63-74), Plaintiff’s Statement of Errors (Doc. #7), and the

Commissioner’s Memorandum in Opposition (Doc. #9). Rather than repeat these

summaries, the pertinent evidence will be discussed when addressing the parties’

arguments.

IV. The ALJ’s Decision

As noted previously, it fell to ALJ Kenyon to evaluate the evidence connected to

Plaintiff’s application for benefits. He did so by considering each of the five sequential

steps set forth in the Social Security Regulations. See 20 C.F.R. § 416.920. He reached

the following main conclusions:

Step 1: Plaintiff has not engaged in substantial gainful employment since

November 23, 2002.

Step 2: She has (and had prior to attaining age 22) the severe impairments of

a history of tachycardia; obesity; chronic headaches; depression; and

anxiety/post-traumatic stress disorder.

Step 3: She does not (and did not prior to attaining age 22) have an

impairment or combination of impairments that met or medically

equaled the severity of one in the Commissioner’s Listing of

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4: Her residual functional capacity, or the most she could do despite her

impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239

(6th Cir. 2002), consists of “light work … subject to the following

limitations: (1) occasional crouching, crawling, kneeling, stooping,

balancing, and climbing of ramps and stairs; (2) no climbing of

ladders, ropes, and scaffolds; (3) no work around hazards such as

unprotected heights or dangerous machinery; (4) limited to

performing unskilled, simple, repetitive tasks; (5) occasional contact

with coworkers and supervisors; (6) no public contact; (7) no fast

paced production work or strict quotas; (8) limited to performing jobs

which involve very little, if any, change in the job duties or the work

routine from one day to the next.”

Step 4: She has no past relevant work.

Step 5: She can (and could prior to attaining age 22) perform a significant

number of jobs that exist in the national economy.

(Doc. #6, PageID #s 40-52, 63-74). These main findings led the ALJ to ultimately

conclude that Plaintiff was not under a benefits-qualifying disability. Id. at 51, 74.

V. Discussion

Plaintiff contends that the ALJ erred in rejecting the opinions of her treatment

providers. Further, he did not meaningfully weigh the non-examining psychologists’

opinions and made unreasonable findings regarding her suicidal ideation.

The Commissioner maintains that substantial evidence supports the ALJ’s

decision.

A. Opinion Evidence

Plaintiff contends that the ALJ failed to meaningfully and reasonably weigh the

opinions of her mental health providers, Sheila Dunn, CNP, and Lana Mayhew-

Schommer, MAT, ATR, BC, LSW.

The Regulations require an ALJ to consider all evidence in the case record,

including evidence from all medical sources. 20 C.F.R. § 416.920(a)(3), 416.929(f). The

term “medical sources” refers to both “acceptable medical sources” and healthcare

providers who are not “acceptable medical sources.” Soc. Sec. R. 06-03p, 2006 WL

2329939, at *1 (Soc. Sec. Admin. Aug. 9, 2006)2 (citing 20 C.F.R. §§ 404.1502,

416.902). Only acceptable medical sources can establish the existence of a medically

determinable impairment, provide “medical opinions,” and be considered a treating

source whose medical opinion may be entitled to controlling weight. Id. (citations

omitted).

Evidence from healthcare providers who are not acceptable medical sources can

only be used to show the severity of impairments and how it affects the claimant’s ability

to work. Id. The same factors used to evaluate acceptable medical sources can be used

to evaluate opinions from other sources. Id. at *4-5. These factors include, but are not

limited to, the length and frequency of the relationship, how consistent the opinion is with

other evidence, the degree to which the source presents relevant evidence to support an

opinion, how well the source explains the opinion, whether the source has a specialty or

area of expertise, and other factors that tend to support or refute the opinion. Id. at *4-5.

Although not required by the Regulations, “the adjudicator generally should explain the

weight given to opinions from these ‘other sources,’ or otherwise ensure that the

discussion of the evidence in the determination or decision allows a claimant or

subsequent reviewer to follow the adjudicator’s reasoning….” Id. at *6 (emphasis

added).

The Sixth Circuit recognizes the importance of counselors: “many unemployed

disability applicants receive treatment at clinics that render care to low income patients

2 The Social Security Administration rescinded Soc. Sec. R. 06-03, effective March 27, 2017. At the time

Plaintiff applied for benefits, Soc. Sec. R. 06-03p was still in effect.

by providing mental health treatment through [] counselors. The practical realities of

treatment for those seeking disability benefits underscores the importance of addressing

the opinion of a mental health counselor as a valid ‘other source’ providing ongoing

care.” Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011). Further, although counselors

are not acceptable medical sources, when a mental health counselor has expertise and a

long-term relationship with an individual, their opinions are “entitled to consideration

….” Id.

Ms. Dunn, as a Certified Nurse Practitioner, and Ms. Mayhew-Schommer, as an

art therapist (board certified art therapist and licensed social worker), are not “acceptable

medical sources” and instead fall under the category of “other sources.” 20 C.F.R. §

416.913(d). ALJ Kenyon assigned Ms. Dunn and Ms. Mayhew-Schommer’s opinion

“little weight.” (Doc. #6, PageID #44). He gave two reasons: “they reflect uncritical

acceptance of [Plaintiff’s] subjective allegations and complaints” and their “therapy notes

reflect her functioning to be nearly normal in most aspects.” Id. (internal citations

omitted).

Plaintiff asserts that the ALJ’s weighing of her mental health providers opinions is

“inadequately specific and substantive.” (Doc. #7, PageID #990). Specifically, the

ALJ’s first reason—that her mental health providers’ opinions reflect uncritical

acceptance of her subjective allegations— “is an untenable criticism of mental health

opinion evidence.” Id. (citation omitted). And, Plaintiff is right.

Indeed, “a psychiatric impairment is not as readily amenable to substantiation by

objective laboratory testing as a medical impairment” and, “consequently, the diagnostic

techniques employed in the field of psychiatry may be somewhat less tangible than those

in the field of medicine…. [W]hen mental illness is the basis of a disability claim,

clinical and laboratory data may consist of the diagnosis and observations of

professionals trained in the field of psychopathology.” Brooks v. Comm’r of Soc. Sec.,

531 F. App’x 636, 643-44 (6th Cir. 2013) (quoting Blankenship v. Bowen, 874 F.2d 1116,

1121 (6th Cir. 1989)). Thus, when evaluating opinions from mental health providers,

reliance on an individual’s self-reports in formulating their opinion is not necessarily an

adequate basis for the ALJ to reject the opinion. See Blankenship, 874 F.2d at 1121

(“The report of a psychiatrist should not be rejected simply because of the relative

imprecision of the psychiatric methodology or the absence of substantial documentation,

unless there are other reasons to question the diagnostic techniques.”).

In the present case, Ms. Dunn and Ms. Mayhew-Schommer had treated Plaintiff

for over two years when they completed the mental impairment questionnaire. Their

treatment notes reflect not only Plaintiff’s reports but also their observations. For

example, Ms. Mayhew-Schommer indicated in several of her notes that Plaintiff had a

blunted or flat affect and was depressed, sad, tearful, and anxious. (Doc. # 6, PageID #s

775-82. There are no other reasons to question their diagnostic techniques. Accordingly,

it is not reasonable to assume that their opinions were based exclusively on Plaintiff’s

subjective allegations.

Plaintiff further asserts that substantial evidence does not support the ALJ’s

conclusion that Ms. Dunn and Ms. Mayhew-Schommer’s treatment notes reflect

Plaintiff’s functioning to be “nearly normal.” Plaintiff is correct. Ms. Mayhew-

Schommer’s treatment notes are consistent with her opinion. For example, in June 2015,

she noted several times that Plaintiff was depressed with a blunted affect. Id. at 780-82.

At one appointment, Plaintiff was tearful and at another, she reported increased anxiety

and panic attacks. Id. at 779-80. In July 2015, Ms. Mayhew-Schommer noted that

Plaintiff was sad, tearful, and/or anxious, and had a blunted affect. Id. at 775-76. She

had trouble going to sleep, was depressed, and/or had a flat affect. Id. at 777.

Notes from Plaintiff’s other treatment providers are likewise consistent with Ms.

Mayhew-Schommer’s notes and opinion. For instance, in May 2015, Shirlann Knight,

M.D., noted that Plaintiff was tense, depressed, and heard noises at night. Id. at 737.

Plaintiff reported that she sometimes wishes to be gone and told her mom she wanted to

jump out of the car. Id. In June, Dr. Knight indicated Plaintiff was tense and depressed.

Id. at 736. Further, Ramakrishna Gollamudi, M.D., noted on several occasions that

Plaintiff had a depressed and anxious mood and a congruent affect. Id. at 915-26.

Hospital records, moreover, support Ms. Dunn and Ms. Mayhew-Schommer’s

opinion. In May 2015, for instance, Plaintiff presented to the emergency department

“with increased depression and suicidal ideation for the past several weeks.” Id. at 804.

She reported that she has constant moderate-to-severe anxiety and she feels worthless and

helpless. Id. During her examination, the doctor noted that she was tearful. Id. at 808.

Irene Dirksen, LPCC, noted that Plaintiff was “having racing thoughts, thoughts of not

wanting to be here, [and] increased PTSD symptoms.” Id. at 815.

She returned to the emergency department in September 2015. Id. at 845. She

had suicidal ideation; “patient reports that she was going to wait until everyone went to

sleep and then she was going to go downstairs and cut herself on her left arm with a

knife.” Id. at 845. The doctor indicated that she was sad, depressed, and suicidal. Id. at

849. During a mental status exam, a doctor indicated that Plaintiff appeared mildly

distressed and experienced auditory hallucinations. Id. at 870. Further, she had slowed

speech, avoidant eye contact, depressed mood, and constricted affect. Id.

In April 2016, Plaintiff presented to the emergency department because of suicidal

ideation. Id. at 938. Plaintiff repeatedly told staff that she did not want to be around

anyone and did not want to live. Id. She had felt that way for several weeks. Further,

she heard voices that were telling her to “go ahead and do it.” Id. Upon examination, the

doctor noted that Plaintiff had a flat affect, poor eye contact, and appeared depressed. Id.

at 942.

Together, this evidence illustrates the severity of Plaintiff’s mental conditions.

Accordingly, substantial evidence does not support the ALJ’s finding that Plaintiff’s

functioning is “nearly normal in most aspects.” Id. at 44 (citations omitted).

Plaintiff asserts that the ALJ also erred in weighing the opinions of the State

agency non-examining psychologists. The ALJ summarized their findings and then

assigned their opinions “partial weight.” Id. His only explanation: “The undersigned has

taken [Plaintiff’s] testimony into consideration regarding agoraphobic, and further limited

her functional capacity.” Id.

Regardless of the source, the Regulations require an ALJ to consider and evaluate

every medical opinion in the record. See 20 C.F.R. §§ 416.927(b)-(c). “Unless a treating

source’s opinion is given controlling weight, the administrative law judge must explain in

the decision the weight given to the opinions of a State agency medical or psychological

consultant or other program physician, psychologist or other medical specialist, as the

administrative law judge must do for any opinions from treating sources, nontreating

sources, and other nonexamining sources who do not work for us.” Id. § (e)(2)(ii)

(emphasis added). In deciding what weight to assign an opinion, an ALJ must consider

the following factors: examining relationship; treatment relationship; supportability;

consistency; specialization; and other factors. Id. § (c).

ALJ Kenyon did not give controlling weight to a treating physician’s opinion and

was thus required to explain the weight given to the State agency non-examining

psychologists’ opinions using the factors set forth above. See id. § (e)(2)(ii). However,

ALJ Kenyon did not. This constitutes error.

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3

B. Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial

evidence or when the ALJ failed to follow the Administration’s own regulations and that

shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial

right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to

provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson,

378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s

opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the

3 In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of

Plaintiff’s other challenges to the ALJ’s decision is unwarranted.

plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific

reasons supported by substantial evidence for finding the plaintiff lacks credibility, see

Rogers, 486 F.3d at 249.

Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,

modify, or reverse the Commissioner’s decision “with or without remanding the cause for

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand

under sentence four may result in the need for further proceedings or an immediate award

of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th

Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or

where the evidence of disability is strong while contrary evidence is lacking. Faucher v.

Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).

A judicial award of benefits is unwarranted in the present case because the

evidence of disability is not overwhelming and the evidence of disability is not strong

while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding

this case to the Social Security Administration pursuant to sentence four of § 405(g) due

to the problems discussed above. On remand, the ALJ should be directed to evaluate the

evidence of record, including the medical source opinions, under the applicable legal

criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and

to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to

determine anew whether Plaintiff was under a disability and whether her applications for

Child Disability Benefits and Supplemental Security Income should be granted.

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s non-disability finding be vacated;

2. No finding be made as to whether Plaintiff Stephanie George was under a

“disability” within the meaning of the Social Security Act;

3. This matter be REMANDED to the Social Security Administration under

sentence four of 42 U.S.C. § 405(g) for further consideration consistent

with this Report and Recommendations, and any decision adopting this

Report and Recommendations; and

4. The case be terminated on the Court’s docket.

December 4, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to the proposed findings and recommendations within FOURTEEN days after

being served with this Report and Recommendations. Such objections shall specify the

portions of the Report 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

FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,

949-50 (6th Cir. 1981).