Opinion
Case No. 1:13-cv-168
07-16-2014
BILLY O. BROWN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Litkovitz, M.J.
ORDER
Plaintiff 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 plaintiff's application for supplemental security income (SSI). This matter is before the Court on plaintiff's Statement of Errors (Doc. 9), the Commissioner's response in opposition (Doc. 14), and plaintiff's reply memorandum (Doc. 15).
I. Procedural Background
Plaintiff has twice applied for SSI benefits. Plaintiff first applied for SSI in August 2007. On April 29, 2009, following an administrative hearing, administrative law judge (ALJ) Sarah J. Miller denied his claim. (Tr. 72-84). Plaintiff subsequently filed a second SSI application in September 2009, alleging disability since April 25, 2009, due to post-traumatic stress disorder (PTSD), depressive disorder, and chronic back pain. Plaintiff's second application was denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before ALJ Larry A. Temin. Plaintiff, along with a vocational expert (VE), appeared and testified at the ALJ hearing. On November 23, 2011, ALJ Temin issued a decision denying plaintiff's SSI application. Plaintiff's request for review by the Appeals Council was denied, making the decision of the ALJ the final administrative decision of the Commissioner.
Plaintiff amended his alleged disability onset date to February 18, 2007, at the ALJ hearing. (Tr. 31-33).
II. Analysis
A. Legal Framework for Disability Determinations
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. § 1382c(a)(3)(A) (SSI). 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. § 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.Robbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing §§ 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. Robbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).
2) If the claimant does not have a severe medically determinable physical or mental impairment - i.e., an impairment that significantly limits his or her physical or mental ability to do basic work activities - the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the listings in Appendix 1 to Subpart P of the regulations and meets the duration requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not disabled. If the claimant cannot make an adjustment to other work, the claimant is disabled.
B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:
1. The [plaintiff] has not engaged in substantial gainful activity since September 14, 2009, the application date (20 CFR 416.971 et seq.).(Tr. 16-22).
2. The [plaintiff] has the following severe impairments: lumbar degenerative disc disease; a depressive disorder; a personality disorder; post-traumatic stress disorder; polysubstance abuse; and obsessive compulsive disorder (20 CFR 416.920(c)).
3. The [plaintiff] does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926).
4. The [plaintiff] has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c). Specifically, the [plaintiff] can perform work activity except as follows: The [plaintiff] can lift, carry, push, or pull up to 50 pounds occasionally and 25 pounds frequently. He can stand and/or walk 6 hours in an eight-hour workday. He can sit 6 hours in an eight-hour workday. He can only frequently stoop, kneel, crouch, and climb ramps or stairs. He cannot climb ladders, ropes, or scaffolds or work at unprotected heights or around hazardous machinery. The [plaintiff] can understand only short and simple instructions. He cannot interact with the general public. His job should not require more than superficial interaction with coworkers or supervisors.
5. The [plaintiff] is unable to perform any past relevant work (20 CFR 416.965).
6. The [plaintiff] was born [in] . . . 1965, and was 44 years old (defined as a younger individual age 18-49) on the date the application was filed (20 CFR 416.963).
7. The [plaintiff] has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. 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 [plaintiff] is "not disabled," whether or not the [plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the [plaintiff]'s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the [plaintiff] can perform (20 CFR 416.969 and 416.969(a)).
10. The [plaintiff] has not been under a disability, as defined in the Social Security Act, since September 14, 2009, the date the application was filed (20 CFR 416.920(g)).
Plaintiff has past relevant work as a forklift operator and factory worker. (Tr. 21, 63-65).
C. Judicial Standard of Review
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." Robbers, 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).
D. Specific Errors
On appeal, plaintiff asserts three assignments of error: (1) the ALJ erred by rejecting the opinions of his treating sources; (2) the ALJ erred by giving the most weight to the opinions of the state agency reviewing doctors because they did not review the complete record; and (3) the ALJ erred by failing to find that plaintiff's mental impairments meet Listing 12.04(C)(2). Plaintiff's first and second assignments of error will be addressed together.
1. The ALJ erred in weighing the opinion evidence of record.
a. Medical evidence
Plaintiff received mental health treatment while incarcerated from March 2005 through August 2006 for depression, suicidal ideation, anxiety, hallucinations, and PTSD related to flashbacks of witnessing his grandfather murder his grandmother when he was 10 years old. (Tr. 267-342). Upon his release in August 2006, plaintiff's diagnoses were dysthymic disorder and PTSD, and his medications included Buspar, Prozac, and Wellbutrin. (Tr. 267-70).
In September 2006, plaintiff began treating at Greater Cincinnati Behavioral Health Services (GCB). (Tr. 484-90). Plaintiff reported that he continued to have vivid memories, flashbacks, and nightmares regarding his grandmother's murder. (Tr. 490). He complained of easy frustration, poor memory, poor concentration, low energy, and a history of suicidal ideation. (Id.). The intake social worker diagnosed plaintiff with depressive disorder, alcohol abuse in remission, cannabis abuse in remission, PTSD, and personality disorder and he was assigned a Global Assessment of Functioning score of 50 (Tr.485).
A GAF score represents "the clinician's judgment of the individual's overall level of functioning." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000). The GAF score is taken from the GAF scale, which "is to be rated with respect only to psychological, social, and occupational functioning." Id. The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with clear expectation of death). Id. at 34. Individuals with scores of 41 to 50 are identified as having "serious symptoms," such as suicidal ideation, or any serious impairment in social, occupational, or school functioning, such as having no friends, not being able to keep a job, or being unable to work. Id. Individuals with scores of 31 to 40 are considered to have some impairment in reality testing or communication (e.g., illogical or irrelevant speech) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g. depressed adults avoid friends, neglect family, and are unable to work). Id.
From December 2007 through June 2011, Dr. Harrison was plaintiff's treating psychiatrist at GCB. See Tr. 403-72, 505-83. Dr. Harrison consistently rated plaintiff's GAF score between 35 and 40. Id. Plaintiff's subjective reports to Dr. Harrison frequently included reports of stress, fear and anxiety, and self-isolation (Tr. 418, 421, 428, 431, 434, 446, 452, 455, 461, 464, 505, 512), though at times he reported feeling "better" and that he was "doing well." (Tr. 403, 412, 415, 424, 437, 440, 458, 581). As for objective findings, Dr. Harrison recurrently found that plaintiff was alert, fully-oriented, and had a full affect and mood (Tr. 403, 412, 418,m 421, 424, 437, 440, 449, 455, 458, 464, 512, 544), but occasionally noted that plaintiff appeared anxious, depressed, somber, or distressed. (Tr. 415, 428, 431, 434, 446, 452, 461, 505, 566). Plaintiff testified in October 2011 that Dr. Harrison had recently suffered a stroke (Tr. 45); Dr. Fedder subsequently took over as plaintiff's psychiatrist at GCB.
Plaintiff worked with a mental health case manager, Troy Pendleton, at GCB from April 2010 to at least September 2011. See generally Tr. 504-603, 660-704. Mr. Pendleton's case notes reflect that he met with plaintiff once or twice a week and that plaintiff consistently presented with a depressed mood and reported self-isolation and experiencing anxiety in public. See Tr. 504, 508-09, 521-22, 515, 518, 524-28, 531-32, 536, 540-41, 547, 554-55, 558, 561-62, 564-64, 572-73, 575, 578-80, 584, 588-89, 592-93, 598, 600, 686. Mr. Pendleton would pick plaintiff up and drive him to his appointments at GCB; during these car rides Mr. Pendleton worked with plaintiff on coping skills, socialization, and symptom management. See Tr. 686. As part of plaintiff's treatment at GCB, Mr. Pendleton and GCB social workers had plaintiff engage in in vivo treatment starting June 2011, including going to stores to confront his anxiety and listening to imaginal exposure tapes of his retelling of his grandmother's murder. See, e.g., Tr. 689, 700. Plaintiff reported ongoing anxiety when in public and that being alone calmed him, but he also had some success in going to stores without experiencing anxiety. (Tr. 666, 670). Plaintiff reported anger and sadness while listening to the imaginal exposure tapes and was reluctant to continue this therapy. (Tr. 677, 685).
On October 13, 2011, Mr. Pendleton completed a medical assessment of plaintiff's abilities to do work-related activities. (Tr. 706-10). Mr. Pendleton reported that plaintiff is "extremely limited" in every area necessary for successful work activity. (Id.). In the narrative portion of the assessment, Mr. Pendleton stated that plaintiff is extremely limited in his ability to follow work rules because he has comprehension and memory difficulties and needs things explained to him multiple ways before understanding them and also requires written reminders, like the checklist Mr. Pendleton created for plaintiff, so that certain tasks could be completed. (Tr. 706). Mr. Pendleton further explained that plaintiff's ability to relate to co-workers, deal with the public, or interact with supervisors was extremely limited by plaintiff's social anxiety which leads plaintiff to self-isolate even around family, and that overexposure causes plaintiff to become anxious, irritated, depressed, and overwhelmed. (Id.). Regarding his finding that plaintiff is extremely limited in his judgment, Mr. Pendleton stated that plaintiff has low self-esteem and low self-confidence; is easily overwhelmed; has poor stress tolerance; "freezes up" and "goes blank"; and frequently seeks guidance from others in making decisions. (Tr. 707). Mr. Pendleton stated that plaintiff has stress which causes physical illness, can lead to suicidal thoughts and flashbacks, and cause him to become tearful when overwhelmed such that his ability to deal with work-related stress is extremely limited. (Id.). Regarding his finding that plaintiff is extremely limited in his abilities to function independently, maintain attention and concentration, and persist at work-like tasks, Mr. Pendleton cited to plaintiff's need for support; easy distractibility; low motivation; self-isolation; inability to complete hobbies like putting toy models together; lack of interest due to depression; and history of almost starting fires because he became distracted and walked away from meals he was cooking. (Id.). Mr. Pendleton cites to similar evidence in support of his findings that plaintiff is extremely limited in his ability to understand, remember, and carry out job instructions or to demonstrate reliability. (Tr. 708-09). Dr. Fedder endorsed Mr. Pendleton's assessment on December 28, 2011. (Tr. 716).
In December 2009, Dr. Zwissler, a state agency reviewing psychologist, reviewed the record and opined that plaintiff has mild restrictions in his activities of daily living; moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace; and no episodes of decompensation of extended duration. (Tr. 386). Dr. Zwissler adopted the mental residual functional capacity assessment from the previous administrative decision of April 29, 2009. (Tr. 392). In May 2010, state agency psychologist Dr. Chambly reviewed plaintiff's updated mental health records and affirmed Dr. Zwissler's assessment, citing to Dr. Harrison's treatment note from April 2010 reflecting that plaintiff reported feeling better and presented as alert, pleasant, and oriented x4. (Tr. 501, citing Tr. 403).
b. Regulatory standards
"The Commissioner has elected to impose certain standards on the treatment of medical source evidence." Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). "These standards, set forth in administrative regulations, describe (1) the various types of evidence that the Commissioner will consider, 20 C.F.R. § 404.1512; (2) who can provide evidence to establish an impairment, 20 C.F.R. § 404.1513; and (3) how that evidence will be evaluated, 20 C.F.R. § 404.1520b. Gayheart v. Comm's of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). This evidence may include "medical opinions, which 'are statements from physicians and psychologists . . . that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [ ] symptoms, diagnosis and prognosis,' physical and mental restrictions, and what the claimant can still do despite his or her impairments." Id., (citing 20 C.F.R. 404.1527(a)(2)).
The applicable regulations lay out the three types of acceptable medical sources upon which an ALJ may rely on: treating source, nontreating source, and nonexamining source. 20 C.F.R. § 416.902. When treating sources offer opinions, the Social Security Administration is to give such opinions the most weight and is procedurally required to "give good reason in [its] notice of determination or decision for the weight [it gives the claimant's] treating source's opinion." Smith v. Comm's of Soc. Sec., 482 F.3d at 875. This requirement only applies to treating sources. Id. at 876. "With regard to nontreating, but examining, sources, the agency will simply generally give more weight to the opinion of a source who has examined the claimant than to the opinion of a source who has not examined him." Ealy v. Comm's of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(1)) (internal citations omitted).
The ALJ must consider all available evidence in an individual's case record, including evidence from medical sources. SSR 06-03p. The term "medical sources" refers to both "acceptable medical sources" and health care providers who are not "acceptable medical sources." Id. (citing 20 C.F.R. § 404.1502 and § 416.902). Licensed physicians and licensed or certified psychologists are "acceptable medical sources." Id. (citing 20 C.F.R. § 404.1513(d)(1) and § 416.913(d)). Only "acceptable medical sources" as defined under 20 C.F.R. § 416.913(a) can provide evidence establishing the existence of a medically determinable impairment, give medical opinions, and be considered treating sources whose medical opinions may be entitled to controlling weight. Id.
Mental health case managers are not "acceptable medical sources" and instead fall into the category of "other sources." 20 C.F.R. § 416.913(d)). Information from "other sources" may be based on special knowledge of the individual and may provide insight into the severity of an individual's impairment and how it affects the individual's ability to function. SSR 06-03p. It may be appropriate to give more weight to the opinion of a medical source who is not an "acceptable medical source" if he or she has seen the individual more often than the treating source and has provided better supporting evidence and a better explanation for his or her opinion. SSR 06-03p. Factors to be considered in evaluating opinions from "other sources" who have seen the claimant in a professional capacity include how long the source has known the individual, how frequently the source has seen the individual, how consistent the opinion of the source is with other evidence, how well the source explains the opinion, and whether the source has a specialty or area of expertise related to the individual's impairment. Id. See also Cruse v. Comm'r of Social Sec., 502 F.3d 532, 541 (6th Cir. 2007). Not every factor will apply in every case. SSR 06-03p. The ALJ "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 [ALJ's] reasoning, when such opinions may have an effect on the outcome of the case." SSR 06-03p, 2006 WL 2329939, at *6 (emphasis added). With this framework in mind, the Court turns to plaintiff's arguments.
c. Weight to opinion evidence
The ALJ afforded "significant weight" to the opinions of the non-examining state agency psychologists, Drs. Zwissler and Chambly, stating the opinions "are supported by the objective medical evidence and because there is no opinion from [plaintiff]'s treating psychiatrist to the contrary." (Tr. 19). Relying on these opinions, the ALJ determined that plaintiff's impairments were properly accommodated by a residual functional capacity (RFC) limiting plaintiff to understanding only short and simple instructions; having no interaction with the general public; and no more than superficial interaction with coworkers or supervisors. (Tr. 18-19).
The ALJ determined that GCB mental health case manager Pendleton is not an "acceptable medical source" for purposes of offering a medical opinion, but that his opinion could be considered to provide insight into the severity of plaintiff's impairments and his functional limitations. (Tr. 19). The ALJ concluded, however, that Mr. Pendleton's opinion was due only "little weight" because "it is not supported by objective examination and not consistent with progress notes from [GCB]." (Tr. 20). The ALJ did not address Dr. Fedder's endorsement of Mr. Pendleton's opinion or explain why Mr. Pendleton's opinion was not consistent with the GCB treatment notes.
Plaintiff asserts the ALJ erred in weighing the opinion evidence of record by discounting the opinion of his mental health case manager and giving the most weight to the non-examining state agency psychologists. Plaintiff maintains that Mr. Pendleton's opinion should have been given the most weight because he has a long-term treatment relationship with plaintiff and is in the best position to opine on how plaintiff is functionally limited by his mental impairments. Further, plaintiff claims the ALJ's decision to discount Mr. Pendleton's opinion is not supported by substantial evidence because contrary to the ALJ's finding, the opinion is supported by the treatment notes from Mr. Pendleton, plaintiff's therapist, and former treating psychiatrist, Wayne Harrison, M.D., and the opinion was endorsed by plaintiff's current treating psychiatrist, Dr. Fedder. Plaintiff also argues that the ALJ erred by giving greater weight to the non-examining state agency psychologists because their opinions are based on an incomplete review of the record. Plaintiff's arguments are well-taken.
The Court recognizes that the ALJ was not required to give any special credence to Mr. Pendleton's opinion as mental health case managers are not "acceptable medical sources" but are considered "other sources." See 20 C.F.R. § 416.913(a), (d). However, the ALJ's cursory rejection of Mr. Pendleton's opinion, the omission of any evaluation of the treatment notes, and his failure to address the fact that Mr. Pendleton's opinion was endorsed by Dr. Fedder, plaintiff's psychiatrist at GCB, do not comply with the applicable Social Security Ruling and deprives the Court of a meaningful basis for judicial review.
The record does not reflect Mr. Pendleton's specific qualifications, but he is identified as a QMHS (Qualified Mental Health Specialist) by GCB. See, e.g., Tr. 515.
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Mr. Pendleton has a close and lengthy treatment relationship with plaintiff: he meets with plaintiff one to two times a week; takes plaintiff to and from appointments; and assists plaintiff with his in vivo treatment by, e.g., driving him to stores when plaintiff's treatment requires him to expose himself to public interactions. Mr. Pendleton's opinion regarding plaintiff's extreme limitations in social functioning, judgment, and ability to engage in work-related activity are based on his personal observations and are consistent with GCB treatment notes documenting plaintiff's ongoing self-isolating behavior (Tr. 431, 504, 508, 531, 541), concentration difficulties (Tr. 505, 508, 576), anxiety and depression, (Tr. 415, 431, 452, 461, 505, 534), limited insight and impaired judgment (Tr. 510, 516, 519), and PTSD flashbacks (Tr. 431, 434, 446, 452, 535). The significant limitations found by Mr. Pendleton are also consistent with Dr. Harrison's findings that plaintiff's GAF remained between 35 and 40 throughout the course of his treatment, indicating that plaintiff had a major impairment in work abilities, judgment, thinking, or mood. See Tr. 407-72, 505-83. Further, Mr. Pendleton's opinion is well-explained as he provides lengthy explanations supporting each of his findings. For example, when asked to describe and support his opinion that plaintiff is extremely limited in his ability to follow work rules, Mr. Pendleton stated: "[Plaintiff] has difficulty with comprehension + memory - needs things repeated and explained in different ways before he grasps things. Needs written reminders for appts. Case mgr. has had to make a checklist of steps [plaintiff] has to take to complete some tasks. He has poor concentration and is easily distracted." (Tr. 706).
The ALJ's one-sentence, perfunctory rejection of Mr. Pendleton's opinion does not comply with Social Security Regulation 06-03p or with the requirement that the ALJ articulate the bases for giving Mr. Pendleton's opinion only "little weight." The ALJ did not address the relevant factors of plaintiff's treatment with Mr. Pendleton, including the length and frequency of the treatment, the consistency of Mr. Pendleton's opinion with his own treatment notes and other GCB notes, or whether Mr. Pendleton's findings are well-supported or explained. See SSR 06-03p, 2006 WL 2329939. To the extent the ALJ determined Mr. Pendleton's findings are not supported by objective examination or are inconsistent with GCB treatment notes, this finding is not supported by substantial evidence. As stated above, Mr. Pendleton's opinion is consistent with Dr. Harrison's objective findings that plaintiff has ongoing problems with anxiety and depression and plaintiff's PTSD symptoms are well-documented. The ALJ's decision does not explain why Mr. Pendleton's opinion is inconsistent with the GCB treatment notes and he has cited to no evidence to support this conclusion. Without this analysis, the Court is unable to meaningfully review the ALJ's decision to give only "little weight" to the mental health case manager's opinion on plaintiff's functional capacity. See Hurst, 753 F.2d at 519.
Further, Mr. Pendleton's opinion was endorsed by Dr. Fedder, yet the ALJ made no mention of this pertinent evidence. When an ALJ fails to mention relevant evidence in his decision, "the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Price v. Heckler, 767 F.2d 281, 284 (6th Cir. 1985) (citation omitted). Given the ALJ's silence, the Court cannot discern from the instant record whether the ALJ overlooked, ignored, or rejected the evidence from Dr. Fedder. The undersigned finds that remand is necessary because the ALJ's bases for discounting Mr. Pendleton's opinion are not supported by substantial evidence and because the ALJ did not engage in the requisite analysis in weighing this opinion.
The ALJ also erred by giving the most weight to the opinions of the non-examining state agency psychologists. One of the factors the ALJ must consider in weighing medical opinions is "the extent to which an acceptable medical source is familiar with the other information in [the] case record." 20 C.F.R. § 416.927(c)(6). A state agency reviewing doctor's opinion may be entitled to greater weight than that of a treating or examining doctor in certain circumstances, such as when the "State agency medical . . . consultant's opinion is based on a review of a complete case record that . . . provides more detailed and comprehensive information than what was available to the individual's treating source." Blakley, 581 F.3d at 409 (quoting SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996)). However, where a non-examining source has not reviewed a significant portion of the treating sources' medical records and the ALJ fails to indicate that he has "at least considered [that] fact before giving greater weight" to the consulting doctor's opinion, the ALJ's decision cannot stand. Blakley, 581 F.3d at 409 (internal quotation omitted).
Here, the ALJ erred in giving "significant weight" to Dr. Zwissler and Dr. Chambly's opinions because there is a significant amount of evidence that was not in the record at the time of their reviews. Dr. Zwissler completed her Psychiatric Review Technique in December 2009. (Tr. 392). Dr. Chambly completed an updated review in May 2010, citing to only one GCB treatment note from April 2010 wherein plaintiff reported feeling better and was described as alert, pleasant, proud of himself, oriented x4. (Tr. 501, citing Tr. 403). Yet, there are nearly 150 pages of medical records generated after these reviews, including Mr. Pendleton's opinion and its endorsement by Dr. Fedder, that the non-examining consultants did not review. See Tr. 503-603, 659-704, 705-16. In contrast to the single April 2010 treatment note cited by Dr. Chambly (Tr. 403), these later records reflect that plaintiff continued to experience significant depression, self-isolation, concentration difficulties, and PTSD symptoms, and had difficulty engaging in therapy regarding his past traumatic experiences. See, e.g., Tr. 504, 505, 511, 535. This evidence provides a longitudinal view of plaintiff's functioning and documents his difficulty in accomplishing the simplest of tasks, such as getting bus tokens or leaving his house and his need for Mr. Pendleton's assistance in seeing a new therapist and going out in public. See, e.g., Tr. 518, 525, 561, 598. The later-generated treatment notes and Mr. Pendleton's opinion contain a more detailed picture of plaintiff's functionality than any other record evidence. The reviewing psychologists did not review this evidence prior to proffering their opinions, making their opinions incomplete.
The ALJ did not acknowledge the limited nature of Dr. Zwissler or Dr. Chambly's review in affording their opinions "significant weight." The ALJ determined that these opinions were entitled to "significant weight" despite the incompleteness of their review "because they are supported by the objective medical evidence and because there is no opinion from [plaintiff]'s treating psychiatrist to the contrary." (Tr. 19). Yet, the ALJ failed to identify the evidence upon which he relied and the GCB treatment notes reflect an individual with significantly greater limitations than either Dr. Zwissler or Dr. Chambly found. Given the ALJ's failure to support his conclusions with citation to any record evidence, as well as the GCB evidence discussed above, the Court finds the ALJ's basis for giving "significant weight" to the opinions of the non-examining state agency reviewing psychologists is not supported by substantial evidence.
Further, to the extent the ALJ asserted there is no contradicting treating source opinion of record, the Court disagrees. It is unclear whether Dr. Fedder has the requisite treatment relationship with plaintiff to be considered a treating psychiatrist but the record includes his endorsement of Mr. Pendleton's opinion. The ALJ's failure to address this evidence or determine whether Dr. Fedder's endorsement equates to a treating psychiatrist's opinion leaves the Court unable to meaningfully review the ALJ's decision.
In sum, the undersigned finds the ALJ erred in giving "significant weight" to the opinions of Drs. Zwissler and Chambly because they were rendered without a review of a significant portion of the relevant mental health treatment records, including the only opinion of record from a treating mental health source. The ALJ's stated reasons for giving the most weight to these doctors' opinions are not substantially supported by the record evidence. This matter must therefore be reversed and remanded for further proceedings.
2. The ALJ did not err in his Step Three determination.
Plaintiff contends the ALJ erred in failing to find that he meets Listing 12.04(C)(2) because his GCB treatment notes and the opinion of case manager Pendleton establish that he has suffered from a chronic affective disorder for at least two years; his affective disorder causes more than minimal limitations in his ability to work; and his symptoms and signs are currently attenuated by medication and psychosocial support. Plaintiff further contends that the record evidence establishes that he has extreme difficulty going out in public; very poor stress tolerance; and that the increased stress of being around others is overwhelming and causes him to experience suicidal thoughts, flashbacks, and tearfulness. Plaintiff argues that the evidence from GCB also shows that he is likely to decompensate if presented with even minimal stress such that the ALJ should have determined that he meets Listing 12.04(C)(2). (Doc. 9 at 15-16).
To satisfy the criteria of Listing 12.04(C)(2), there must be: (1) a medically documented history of a chronic affective disorder of at least two years; (2) the disorder must cause more than minimal limitation on the plaintiff's ability to do basic work activities; and (3) the disorder must be accompanied by a residual disease process resulting in such marginal adjustment that a minimal increase in mental demands would be predicted to cause the plaintiff to decompensate. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(C)(2).
Plaintiff has not presented a developed argument with citations to specific record evidence in support of his Listing's argument and he includes only general references to the GCB treatment notes. (Doc. 9 at 15-16). "It is well-established that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." Rice v. Comm'r of Soc. Sec., 169 F. App'x 452, 454 (6th Cir. 2006) (internal quotations omitted). Similarly, "[i]t is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones." McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997); see also Przytulski v. Astrue, No. 1:11-cv-1518, 2012 WL 2025299, at *6 (N.D. Ohio June 5, 2012) ("The Court will not cull through the record and speculate on which portion of the record a party relies; indeed, the Court is not obligated to wade through and search the entire record for some specific facts that might support a party's claims."). Because plaintiff has offered no analysis demonstrating how he meets Listing 12.04(C)(2) or any guidance as to how the medical evidence supports each of the Listing's relevant criteria, the Court determines that plaintiff has waived his Listings argument.
III. Conclusion
For the reasons stated herein, this matter is REVERSED and REMANDED pursuant to Sentence Four of § 405(g) for further proceedings consistent with this opinion. All essential factual issues have not been resolved in this matter, nor does the current record adequately establish plaintiff's entitlement to benefits as of his alleged onset date. On remand, the Commissioner must properly evaluate the weight to afford the opinions of plaintiff's treating sources; reconsider plaintiff's RFC; and obtain additional medical and vocational evidence as warranted.
IT IS SO ORDERED.
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Karen L. Litkovitz
United States Magistrate Judge