Opinion
Civil Action 2:13-cv-1202
12-16-2014
Stephanie E. Garringer, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
Opinion and Order
Plaintiff Stephanie E. Garringer brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security denying her application for Social Security Disability Insurance Benefits. This matter is before the Court based upon the parties' full consent for a decision on the parties' cross-motions for summary judgment.
Summary of Issues. Plaintiff Garringer maintains that she became disabled on February 3, 2009, at age 35, due to diabetes, an inverted coccnyx, fibromyalgia, neuropathy, an ulcer, depression, anxiety, anemia and bursitis. (PageID 309, 313.)
Plaintiff argues that the decision of the Commissioner denying benefits should be reversed because the administrative law judge did not properly evaluate the opinion of Plaintiff's treating psychiatrist, Dr. Mark Hamill, M.D. (Doc. No. 14-1 at PageID 1312-19.)
Procedural History. Plaintiff Garringer filed her application for disability insurance benefits on April 10, 2009, alleging that she been disabled since February 3, 2009. (PageID 281-89.) The application was denied initially and upon reconsideration. (PageID 162-65, 168-70.) Plaintiff sought a de novo hearing before an administrative law judge, which was held on May 19, 2011, before administrative law judge Timothy G. Keller. (PageID 108-35.) On June 24, 2011, administrative law judge Keller issued a decision finding that Garringer was not disabled within the meaning of the Act. (PageID 139-47.)
Plaintiff requested a review of the hearing decision and on September 12, 2011, the Appeals Council remanded her case to administrative law judge Keller for further proceedings. Specifically, the Appeals Council directed the administrative law judge to further evaluate Garringer's mental impairment and give further consideration to her maximum residual functional capacity by evaluating the treating sources, and explain the weight accorded to those opinions. The administrative law judge was authorized to seek additional information from those sources. (PageID 155-59.)
The administrative law judge conducted a second hearing on February 16, 2012, at which plaintiff, represented by counsel, appeared and testified. (PageID 86-107.) On March 7, 2012, the administrative law judge again rendered a decision unfavorable to plaintiff, and again the plaintiff timely appealed. (PageID 64-75.) The Appeals Council declined to review the administrative law judge's March 2012 decision on appeal (PageID 53-57), and therefore administrative law judge Keller's March 2012 decision became the final decision of the Commissioner.
Age, Education, and Work Experience. Plaintiff Garringer was born on July 4, 1973 and was 35 years old on the alleged disability onset date. (PageID 281, 309.) She has an equivalent high school education (GED). (PageID 326.) She has past relevant work experience as a housekeeper and waitress. (PageID 75, 314-15.)
Plaintiff's Testimony. The administrative law judge fairly summarized Garringer's testimony as follows:
On an April 2009 function report, [Garringer] reported that she lived with her teenage son and a friend in a mobile home, and did household chores with her son's assistance, prepared food daily, drove a car, grocery shopped, watched television, read, and went outside two to three times a week. She indicated that she did not require reminders to take care of her personal needs and grooming. She reported that she could pay bills, count change, handle a savings account and use a checkbook. She indicated that she spent time with others and talked to others on the telephone daily.(PageID 71.)
At the February 2012 hearing, she testified that she was living in an apartment with her mother. She said that her son is with her during weekends. She said that she arises between 10:00 a.m. and noon, and retires to bed between 4:00 a.m. and 6:00 a.m., but takes no naps during the day. She said that she frequently watches television, sometimes does laundry, and maintains a driver's license.
At the February 2012 hearing, [Garringer] testified that she was five feet, seven inches tall, and weighed 205 pounds. She said that she has type I diabetes and is insulin dependent. She said that she was on an insulin pump but was taken off of it. She said that she is to get hack on the pump after completing training regarding its use. She said that she has thirst, dizziness, vomiting and shakiness associated with her diabetes. She
said that she has neuropathy that results in numbness in her arms, hands and feet. She said that she has restless leg syndrome. She said that she has weakness and fatigue. She said that she has fibromyalgia that causes pain throughout her body. She said that she has bipolar disorder, depression and anxiety. She said that she has auditory hallucinations, crying spells, mood swings and anxiety attacks three to four times a week. She said that the anxiety attacks come with shortness of breath, sweating, and shaking. She denied use of illegal drugs.(PageID 73.)
Medical Evidence of Record. The relevant medical evidence of record is summarized as follows:
Although the record contains a history of treatment for numerous issues, plaintiff's arguments on appeal accept the administrative law judge's physical residual functional capacity findings and maintain that, given those findings, her psychological conditions impose additional limitations that render her disabled. See Doc. No. 14-1 at PageID 1312-19. Accordingly, the Court has limited its discussion of the record to the evidence related to plaintiff's mental impairments.
Scioto Paint Valley Mental Health Center. Garringer began receiving mental health treatment at Scioto Paint Valley Mental Health Center on March 24, 2009. (PageID 841-52.) Garringer reported that she had recently lost her job "after Dr. Yandila blew up at her and canceled her leave of absence when she learned Stephanie had visited an event in Columbus" and had a "tenuous" relationship with her boyfriend. She was worried what she would "do if he kicks her out?" (PageID 841.) She was also concerned that her son and her ex-husband's girlfriend did not get along. (PageID 850.) At the time of her initial evaluation, it was noted Garringer was oriented to time, person and place; and her affect was appropriate to the situation. Her behavior was elevated and agitated. (PageID 842.) Her mood was found to be anxious and depressed; her attitude was cooperative and motivated; and her speech was clear and understandable but pressured. (PageID 843.) Garringer was diagnosed with depressive disorder NOS, anxiety disorder NOS, and adjustment disorder with mixed emotional features. She was assigned a Global Assessment of Functioning ("GAF") score of 47. (PageID 846.)
Notes from a May 14, 2009 session indicate Garringer was "in a very extremely agitated state." She was "tearful, helpless and anxious." (PageID 850.) She reported having tried numerous antidepressants, none of which had been helpful. Garringer said, "My life is drama." (Id.) She said that she had had panic attacks beginning at age 6. She had a temper. She was upset that her son was living with her ex-husband and his girlfriend, who did not get along with her son. (Id.) The session notes state that "[w]ith her life circumstances wrapping back around to heighten her anxiety she is in a poor spot to think clearly, ane with her sobbing presentation she perhaps has tired out some docs and brought them to the point where they feel prevailed up[on] to present the perfect pill and when that happens it may be that she's been dismissed as drug seeking." (PageID 851.) The plan was to establish regular visits and target symptoms for treatment. (Id.)
On May 19, 2009, Garringer reported that her medication was not covered by insurance and that she had received a speeding ticket and owed over $150 in fines. During her session she complained she was also "furious with" her boyfriend for not "ponying up the money" and complained that her siblings were "too hoity-toity to lend her any money even though they are loaded." The counselor noted Garringer was very agitated during recounting of the speeding ticket story and difficult to focus, scattered, with some pressured speech. (PageID 803.)
During a May 29, 2009 counseling session, Garringer's speech was somewhat pressured, but she seemed less anxious and less revved up. She attributed that to being tired. Her goal was to stay "drama free." (PageID 861.) She had felt more tension since she stopped working. She had started Prozac five days before. She reported that her roommate, Mark, "can be hostile and loud, but that she 'will go down fighting,' and that in spite of his 400# she is not intimidated by him." (Id.) The counselor suggested that Garringer get a pscyhiatric evaluation at Scioto Paint. (Id.)
When initially evaluated by psychiatrist, Mark Hamill, M.D. on June 1, 2009, Garringer reported that she has had depression and anxiety since childhood. When she was about 10, Garringer started having panic attacks. Ativan helped quite a bti. The panic attacks "went away for a while but they came back about four months ago and she is having a lot of panic attacks as well as symptoms of generalized anxiety." (PageID 862.)
Garringer had been on the antidepressants Paxil, Wellbutrin, Lexapro, Cymbalta, and Zoloft, none of which helped her. A high dose of Effexor XR had helped a little bit. At the time of the examination, she had been on Prozac for about two weeks with no benefit. Her other medications included Percocet and shots for pain in her tailbone, iron infusions for anemia, Requip for restless leg syndrome, an insulin pump for diabetes, and Lisinopril for her kidneys. Garringer was seeing a total of seven doctors for her physical medical problems. (Id.)
On mental status examination, Garringer was found to be cooperative and very talkative. There was marked push of speech throughout the session and she admitted to racing and tangential thoughts. Garringer also described a lot of anxiety and no hallucinations. Garringer admitted to occasional suicidal thoughts but no intent or plan and no homicidal ideation. Dr. Hamill found Garringer's mood was very anxious with an appropriate affect and she looked and sounded anxious. She was alert and oriented x 3 and verbalized fair insight and judgment. (PageID 863.) Dr. Hamill assessed bipolar disorder, manic, moderate; panic disorder without agoraphobia; and generalized anxiety disorder. Dr. Hamill prescribed Geodon as a mood stabilizer and Ativan for anxiety and panic attacks. (Id.)
On June 30, 2009, Plaintiff reported frustration with her son and her ex-husband's girlfriend. She said the Ativan "helped quite a bit but there is still room for improvement." (PageID 983.) The Geodon was making her too sleepy, and even when she reduced the dosage she woke up "hung over and drugged". (Id.) Dr. Hamil increased the dosage of Ativan and started plaintiff on a trial of Lamicital. (Id.)
On September 22, 2009, Garringer told Dr. Hamill that while she had improvement with the medication there was "still a lot more room for improvement." Garringer was still having a lot of anxiety and panic attacks, as well as depression, mood swings, poor concentration, and irritability. Dr. Hamill and plaintiff spent most of the visit preparing paperwork for disability, and he agreed with Garringer that she could not work at that time because of her psychiatric condition as well as her non-psychiatric medical conditions which he could not address. Dr. Hamill increased her Ativan and her Lamictal dosages. (PageID 982.)
This same day, Dr. Hamill completed three forms on plaintiff's behalf. (PageID 958-69.) Dr. Hamill listed Garringer's diagnoses as bipolar disorder, panic disorder, and generalized anxiety with current and highest GAF the past year of 35. (PageID 958.) Dr. Hamill said her prognosis was fair to poor and that her anxiety could increase her pain. Dr. Hamill believed that Garringer's impairments would cause her to be absent from work more than four days per month. (PageID 959.) On the mental residual functional capacity evaluation, Dr. Hamill found that Garringer has extreme impairment of her ability to perform at production levels expected by most employers. customary work pressures and marked ability to behave predictably and reliably in an emotionally stable manner. She had extreme impairment of her ability to tolerate customary work pressures. She was also found to have extreme impairment with ability to maintain attention and concentration for more than a brief period of time and marked limitation with her ability to process subjective information accurately and to use appropriate judgment. (PageID 967-69.) Her condition was likely to deteriorate under job stress bed "she has a lot of anxiety and can't tolerate stress." (PageID 969.)
On December 15, 2009, Garringer told Dr. Hamill that she was actually a little bit worse with more anxiety, racing thoughts, irritability, and some insomnia. Dr. Hamill prescribed Abilify, reduced the Lamictal dosage, and continued the Ativan. Garringer was to return in two months. (PageID 981.)
When seen on March 9, 2010, Garringer reported that Abilify caused her to gain 18 pounds and she felt more agitated. She was very concerned about weight gain because of her diabetes and past weight issues. Dr. Hamill stopped the Abilify and prescribed Trileptal. He prescribed Topamax for weight loss. (PageID 980.)
On May 4, 2010, Garringer told Dr. Hamill that the Trileptal had helped but there was still room for improvement. The Topamax hadn't done much. She had no psychotic symptoms but still had racing thoughts and mood swings. Dr. Hamill increased her dosages of Trileptal and Tpamax and continued her Pristiq and Ativan prescriptions. (PageID 1011.)
On June 22, 2010, Garringer reported feeling depressed and while she denied any suicidal ideation she felt overwhelmed at times and had some crying spells. She also reported that her thoughts had been confused. Dr. Hamill concluded that the Topamax had not been beneficial. He increased the Pristiq and contiuned the Trileptal and Ativan. (PageID 1046.)
On August 19, 2010, following her hospitalization for an overdose on Ativan and Valium, Garringer described racing thoughts, mood swings, irritability, paranoid delusions, and auditory hallucinations. She had a lot of anxiety and Dr. Hamill noted a visible tremor as well as push of speech and tangential thoughts. She admitted she had a passive death wish but stressed she would not hurt herself. Garringer had been off Ativan for two weeks. She said that 100 mg. of Seroquel at night during her hospitalization had helped her sleep. Dr. Hamill decided that the higher dose of Pristiq might have added to Garringer's mania, so he planned to taper off and stop the Pristiq. He continued her on Trileptal. He continued her on 100mg to 200 mg. of Seroquel at night to help plaintiff sleep. He prescribed Risperdal as a primary antipsychotic and restarted Klonopin. (PageID 1044.)
On August 22, 2010, Garringer called Scioto Paint and told a case worker that she was feeling suicidal. She said that she had been prescribed antipsychotic medications but had not taken them for a couple of days. She said "there was no point in her being here" because "she has lost her job, car, has a lot of health problems, and her ex-husband is driving her nuts." (PageID 1156.) She report hearing voices. When she was angry, she "just punched people". The worker encouraged Garringer to go to an ER, but she did not have any transportation. The worker called the police, who transported plaintiff to an ER. (Id.)
On October 28, 2010, Garringer presented with increased anxiety, in part due to fear of losing her Medicaid. Dr. Hamill noted her psychotic symptoms, which had mostly resolved, were back because she was more anxious. Garringer also had been skipping some of her Klonopin doses because she was worried about coming off of it. Dr. Hamill increased Garringer's Klonopin dosage and planned on seeing her in four months. (PageID 1155.)
On February 17, 2011, Garringer reported that "she is not doing too bad," although she had been "having more visual and even some auditory hallucinations." (PageID 1230.) Dr. Hamill concluded that "[o]ther than these psychotic symptoms she is reasonably stable." (Id.) He continued her on Klonopin and increased the dosages of her Risperdal and Trileptal. Dr. Hamill planned on Garringer returning to the clinic in six months to see his replacement. (Id.)
On July 8, 2011, Garringer was seen by Christopher Kovell, D.O., Dr. Hamill's replacement at Scioto Paint Valley Mental Health Center. She reported continued problems with depression and very poor sleep. While she had a decrease in auditory hallucinations, she had not noticed a clear improvement in her mood with daily crying spells and often being in a "hateful mood." Dr. Kovell diagnosed mood disorder NOS, rule out bipolar disorder, and history of panic disorder and assessed Garringer's most immediate problem is insomnia. (PageID 1231-32.)
On September 12, 2011, Garringer saw a certified nurse practitioner at Scioto Paint. With the Trazodone, she was sleeping 4-5 hours a night. However, plaintiff was not going to bed when she felt tired but would stay up for a few more hours. Her increased Trileptal had decreased her symptoms of depression. She rated her depression 5-6 on a scale of 0-10. Garringer felt tired in the morning, but did not take naps. Her appetite fluctuated. To get out of the apartment, she walked around the block once a day. She had no transportation. Garringer reported that her anxiety was "bad" at least once, and up to three times, a day. Her anxiety increased with stress. When anxious, she had shaking and trouble breathing. She did deep breathing. She had stopped taking Celexa. Garringer denied audio/visual hallucinations. Her boyfriend had a new job in Kentucky, so she will be spending more time with her mother. The nurse practitioner "encouraged engagement in activities outside the home to sublimate mood." (PageID 1233.)
During the interview, plaintiff was well-groomed. Her psychomotor activity was normal. Her eye contact was good. She was polite and cooperative. Her speech was spontaneous with a regular rate. Her mood was "pretty calm". He reported no delusional thoughts. Her insight and judgment were adequate. (Id.)
The nurse practitioner gave Garringer "[e]xtensive teaching of when to take meds . . ." (Id.) She increased plaintiff's Trazodone dosage and decreased the Risperdal. The Trileptal and Klonpin were continued. Garringer was instructed to call the nurse or crisis hotline if she had hallucinations. (Id.)
The Christ Hospital. Garringer was admitted to the hospital on July 30, 2010 with symptoms significant of depression, anxiety, worries, irritability, agitation, mood swings and insomnia which resulted in a suicide attempt by overdosing on medication. (PageID 1019.) She attempted suicide by overdosing with Ativan, Valium, and some Percocet. She reported "a lot of financial stressors, and also having some on-going issues with her ex-husband" (PageID 1023), including that "the custody dynamic is proving to be difficult" and the fact that Plaintiff "lives with mother whom she has a strained relationship with, patient states 'she is always bitching at me.'" (PageID 1033.) Although she had been taking Trileptal, Lorazepram, and Pristiq, she had not been feeling any better. Lately she had been having more depression and mood swings. (PageID 1023.) She reported a suicide attempt two months before by taking 60 Ativan tablets. Her friend took care of plaintiff, and she was not hospitalized then. This was her first psychiatric hospitalization. She reported hypermanic moods, during which she could become irritable, argumentative and aggressive. Plaintiff reported a history of abusing Ativan. In addition, "she also reports possible history of alcohol abuse." (PageID 1024.) During the hospitalization, she did well on Seroqual. Her mood and depression were better. There were no psychotic symptoms. She was compliant with medications. Garringer was discharged on August 2, 2010, with diagnoses of bipolar mix and personality disorder, NOS. Garringer was assigned GAF score of 50 at discharge. (PageID 1019.)
Catherine Flynn, Psy.D./Karen Terry, Ph.D. After her review of the record on July 14, 2009, state agency psychologist, Dr. Flynn, reported that medically determinable impairments of bipolar syndrome, panic disorder without agoraphobia and generalized anxiety disorder were present, but were not severe. (PageID 882-84.) Dr. Flynn opined that Garringer was mildly restricted in her activities of daily living, moderately limited in maintaining social functioning and in maintaining concentration, persistence or pace, and no episodes of decompensation. (PageID 889.) Dr. Flynn further determined that the evidence did not establish the presence of the "C" criteria. (PageID 890.)
According to Dr. Flynn, Garringer is moderately impaired in her ability to maintain attention and concentration for extended periods; perform activities within a schedule; maintain regular attendance; and be punctual within customary tolerances; complete a normal workday and work week without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (PageID 893-94.) Dr. Flynn opined that Garringer is capable of understanding, remembering, and carrying out one and two step instructions in an environment without strict time or production pressures. She would do best where duties are routine and changes can be explained. She can relate on a superficial basis and would perform best with minimal contact with the public. (PageID 895.) On December 22, 2009, state agency reviewing psychologist, Dr. Terry, affirmed Dr. Flynn's assessment. When discussing Dr. Hamill's opinions, Dr. Terry noted Dr. Hamill did not provide evidence to support "such a severe level of limitation," and his opinion was given no weight. (PageID 978.)
Administrative Law Judge's Findings. The administrative law judge found that:
1. [Garringer] meets the insured status requirements of tile Social Security Act through June 30, 2014.
2. [Garringer] has not engaged in substantial gainful activity February 3, 2009, the alleged onset date (20 CFR 404.1571 et seq.).(PageID 69-75.)
3. [Garringer] has the following severe impairments: obesity, diabetes, diabetic neuropathy, hernia, fibromyalgia, anemia, restless leg syndrome and affective and anxiety related disorders (20 CFR 404.1520(c)).
4. [Garringer] does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. [Garringer] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), subject to the following: (1) no more than occasional stooping, crouching, crawling or climbing of ramps or stairs; (2) no climbing of ladders, ropes or scaffolds; and (3) no work around moving machinery or at unprotected heights. From a mental stand point, she can carry out simple repetitive tasks, maintain concentration for two-hour segments, respond appropriately to supervisors and coworkers in a task oriented setting where contact with others is casual and infrequent, and adapt to simple changes and avoid hazards in a setting without strict production quotas.
6. [Garringer] is capable of performing past relevant work as a housekeeper and waitress. This work does not require the performance of work-related activities precluded by her residual functional capacity (20 CFR 404.1565).
7. [Garringer] has not been under a disability, as defined in the Social Security Act, from February 3, 2009, through the date of this decision (20 CFR 404.1520(1)).
Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 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)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is "more than a mere scintilla." Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976). The Commissioner's findings of fact must be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining whether the Commissioner's decision is supported by substantial evidence, the Court must "take into account whatever in the record fairly detracts from its weight." Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985).
Plaintiff's Arguments. Plaintiff contends that the administrative law judge did not properly evaluate the opinion of Plaintiff's treating psychiatrist, Dr. Hamill. According to Garringer, adopting Dr. Hamill's opinion would result in a finding that Plaintiff is disabled. Plaintiff also argues that the administrative law judge failed to properly evaluate the State Agency opinions. (Doc. No. 14-1 at PageID 1312-19.)
Analysis.
Treating Physician: Legal Standard. A treating doctor's opinion on the issue of disability is entitled to greater weight than that of a physician who has examined plaintiff on only one occasion or who has merely conducted a paper review of the medical evidence of record. Hurst v. Schweiker, 725 F.2d 53, 55 (6th Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054 (6th Cir. 1983). The Commissioner's regulations explain that Social Security generally gives more weight to a treating doctors' opinions because treators are usually "most able to provide a detailed, longitudinal picture" of the claimant's medical impairments. 20 C.F.R. § 404.1527(c)(2). When the treating doctor's opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record" the Commissioner "will give it controlling weight." Id.
The Commissioner's regulations define "medical opinions" as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2) . Treating sources often express more than one medical opinion, including "at least one diagnosis, a prognosis and an opinion about what the individual can still do." SSR 96-2p, 1996 WL 374188, at *2. When an administrative law judge fails to give a good reason for rejecting a treator's medical opinion, remand is required unless the failure does not ultimately affect the decision, i.e., the error is de minimis. Wilson, 378 F.3d at 547. So reversible error is not committed where the treator's opinion "is patently deficient that the Commissioner could not possibly credit it;" the administrative law judge's findings credit the treator's opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R. § 404.1527(c)(2) but does not technically meet all its requirements. Id. See, Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013).
Even though a claimant's treating physician may be expected to have a greater insight into his patient's condition than a one-time examining physician or a medical adviser, Congress specifically amended the Social Security Act in 1967 to provide that to be disabling an impairment must be "medically determinable." 42 U.S.C. §423(d)(1)(A). Consequently, a treating doctor's opinion does not bind the Commissioner when it is not supported by detailed clinical and diagnostic test evidence. Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir. 2004);Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1983); Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v. Califano, 558 F.2d 253, 254-256 (5th Cir. 1975). 20 C.F.R. §404.1513(b), (c), (d), 404.1526(b), and 404.1527(a)(1).
Section 404.1527(a)(1) provides:
You can only be found disabled if you are unable to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. See §404.1505. Your impairment must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. See §404.1508.
The Commissioner's regulations provide that she will generally "give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you." 20 C.F.R. § 404.1527(c)(1). When a treating source's opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight." 20 C.F.R. § 404.1527(c)(2).
When the treating source's opinion is well-supported by objective medical evidence and is not inconsistent with other substantial evidence, that ends the analysis. 20 C.F.R. § 404.1527(c)(2); Social Security Ruling 96-2p. Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013). The Commissioner's regulations require decision-makers "to provide 'good reasons' for discounting the weight given to a treating-source opinion. [20 C.F.R.] § 404.1527(c)(2)." Gayheart, 710 F.3d at 375.
Section 404.1527(c)(2) provides, in relevant part: "We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."
The Commissioner has issued a policy statement about how to assess treating sources' medical opinions. Social Security Ruling 96-2p. It emphasizes:
1. A case cannot be decided in reliance on a medical opinion without some reasonable support for the opinion.The focus at this step is solely on whether the treating-source opinion is well-supported by objective medical evidence and not inconsistent with other substantial evidence. In making this determination the factors for assessing the weight to give to the medical opinions of any medical source, 20 C.F.R. § 404.1527(c), are not used. These come into play only when there are good reasons not to give the treating-source opinion controlling weight. 20 C.F.R. § 404.1527(c)(2) ; Gayheart, 710 F.3d at 376.
2. Controlling weight may be given only in appropriate circumstances to medical opinions, i.e., opinions on the issue(s) of the nature and severity of an individual's impairment(s), from treating sources.
3. Controlling weight may not be given to a treating source's medical opinion unless the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques.
4. Even if a treating source's medical opinion is well-supported, controlling weight may not be given to the opinion unless it also is "not inconsistent" with the other substantial evidence in the case record.
5. The judgment whether a treating source's medical opinion is well supported and not inconsistent with the other substantial evidence in the case record requires an understanding of the clinical signs and laboratory findings and what they signify.
6. If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted.
7. A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to deference and be adopted by the adjudicator.
Section 404.1527(c)(2) provides, in relevant part:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the opinion.(Emphasis added.)
If there are good reasons to find that the treating-source opinion is not controlling, then the decision-maker turns to evaluating all the medical source evidence and determining what weight to assign to each source, including the treating sources.
Even when the treating source's opinion is not controlling, it may carry sufficient weight to be adopted by the Commissioner:
Adjudicators must remember that a finding that a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to "controlling weight," not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 404.1527. In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.SSR 96-2p.
The Commissioner's regulations require the decision-maker to considers the length of the relationship and frequency of examination; nature and extent of the treatment relationship; how well-supported the opinion is by medical signs and laboratory findings; its consistency with the record as a whole; the treating source's specialization; the source's familiarity with the Social Security program and understanding of its evidentiary requirements; and the extent to which the source is familiar with other information in the case record relevant to decision. 20 C.F.R. § 404.1527(c)(1) through (6). Subject to these guidelines, the Commissioner is the one responsible for determining whether a claimant is disabled. 20 C.F.R. § 404.1527(e).
The case law is consistent with the principals set out in Social Security Ruling 96-2p. A broad conclusory statement of a treating physician that his patient is disabled is not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). For the treating physician's opinion to have controlling weight it must have "sufficient data to support the diagnosis." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536, 538 (6th Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). The Commissioner may reject the treating doctor's opinions when "good reasons are identified for not accepting them." Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20 C.F.R. § 404.1527(c)(2)("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."); Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not to give a treator's opinion controlling weight, the decision-maker must evaluate the treator's opinion using the factors set out in 20 C.F.R. § 404.1527(c)(2). Wilson, 378 F.3d at 544; Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable presumption that the treating physician's opinion "is entitled to great deference." Rogers v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Hensley, above. The Commissioner makes the final decision on the ultimate issue of disability. Warner v. Commissioner of Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human Services, 980 F.2d 1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d 954, 958 n.1 (11th Cir. 1982).
Treating Doctor: Discussion. The administrative law judge declined to give Dr. Hamill's disability opinion and functional assessment controlling weight. The administrative law judge determined:
In September 2009, John Hamill, M.D., indicated mostly mild or moderate mental work-related limitations, but he also indicated marked limitation with respect to the claimant's ability to behave predictably, reliably and in an emotionally stable manner, and extreme mental work related limitations with respect to the claimant's abilities to maintain attention and concentration, perform at production levels expected by most employers, and tolerate customary work pressures. Dr. Hamill also indicated that the claimant would be absent from work for more than four days per month. However, mental health treatment notes indicate that the claimant's mental related problems substantially revolve around financial problems and problems with her boyfriend and ex-husband, with little reference to a psychiatric condition that would prevent her from doing what she wants to do. The record simply does not support Dr. Hamill's suggested marked and extreme limitations, which appear to be based substantially on the subjective reports of the claimant, who is not entirely credible.(PageID 74, citation to record omitted.) The only reference to Dr. Hamill in the administrative law judge's decision is the above notation.
Although it appears the administrative law judge recognized Dr. Hamill as a treating psychiatrist and obviously did not give his opinion controlling weight, he did not indicate why he concluded that Dr. Hamill's opinion was based on the subjective reports of Garringer and not supported by the substantial evidence in the record, as required under 20 C.F.R. §404.1527(c)(2). Although he discussed other medical records concerning plaintiff's mental health treatment, he did not state whether or how any of this evidence was inconsistent with Dr. Hamill's assessment of Garringer's mental capacities. The cursory statements of the administrative law judge are insufficient to permit a meaningful review of whether the administrative law judge properly applied the controlling weight test.
Having obviously concluded that Dr. Hamill's opinion was not entitled to controlling weight, the administrative law judge also did not apply the factors in §404.1527(c) in determining what other weight to give his opinion. Although a formulaic recitation of the factors listed in 20 C.F.R.§404.1527(c)(2)-(6) is not required, see Friend v. Comm'r of Soc. Sec., 375 F. App'x 543, 551 (6th Cir. 2010), any "good reasons" for discounting the weight given to a treating-source opinion must be "supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Rogers, 486 F.3d at 242. The administrative law judge's discussion of Garringer's treatment relationship with Dr. Hamill was cursory at best. Although he referred to the fact that Dr. Hamill's mental health treatment notes indicate that Garringer's mental related problems substantially revolve around financial problems and problems with her boyfriend and ex-husband, with little reference to a psychiatric condition that would prevent her from doing what she wants to do, he engaged in no analysis of how this information and other relevant factors, such as the frequency of examination or whether Dr. Hamill's opinion was inconsistent with the record as a whole or was not supported by relevant evidence, contributed to his decision to based Garringer's mental work-related functioning on the opinions of the state agency reviewing psychologists.
Moreover, Garringer received treatment at Scioto Paint Valley Mental Health Center from March 2009 through the date of the administrative law judge's decision. Dr. Hamill treated her between June 2009 and February 2011. She then began seeing Dr. Kovell. The two non-examining psychologists who reviewed the mental health record for the Commissioner made their residual functional capacity evaluations in 2009. After that, Garringer continued to report disabling symptoms to Dr. Hamill, and she was hospitalized after a July 2010 suicide attempt. The latest treatment notes from Scioto Paint indicate that plaintiff remained depressed and was mostly house-bound. At a minimum, the administrative law judge should have asked for an additional residual functional capacity evaluation from plaintiff's treating source and asked the state agency psychologists to look at the updated residual functional capacity and review the additional treatment notes for 2010 and 2011.
Plaintiff argues that the administrative law judge also erred in failing to adequately explain the weight being assigned to other medical opinions. The only other medical opinions regarding plaintiff's mental condition specifically referred to by the administrative law judge are those of Dr. Flynn and Dr. Terry, who were non-treating and non-examining sources. Although the administrative law judge was not required to engage in the detailed analysis required by the §404.1527(c) factors in evaluating the opinions of Drs. Flynn and Terry, see Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010); Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007), relevant policy does require administrative law judges to consider opinions by state agency physicians and consultants and to "explain the weight given to these opinions in their decisions." Soc. Sec. Rul. No. 96-6p, 1996 WL 374180 at *1 (Soc. Sec. Admin. July 2, 1996).
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.20 C.F.R. §404.1527 (e)(2)(ii).
The administrative law judge stated that he based Garringer's mental work-related functioning, that she could "carry out simple repetitive tasks, maintain concentration for two-hour segments, respond appropriately to supervisors and coworkers in a task oriented setting where contact with others is casual and infrequent, and adapt to simple changes and avoid hazards in a setting without strict production quotas" (PageID 73-74) on the assessment of Drs. Flynn and Terry. (PageID 73.) However, he essentially gave no reason for doing so. Remand for further explanation pursuant to Rule 96-6p is warranted.
Although more weight is generally given to the medical opinion of a source who has examined the claimant than to the opinion of a source who has not, see 20 C.F.R. §404.1527(c)(1), this "is not a bright-line rule." Dragon v. Comm'r of Soc. Sec., 470 F. App'x 454, 463 (6th Cir. 2012). "A non-examining physician's opinion may be accepted over that of an examining physician when the non-examining physician clearly states the reasons that his opinions differ from those of the examining physicians." Lyons, 19 F. App'x at 302. Dr. Terry discussed the report of Dr. Hamill in her report and stated why she disagreed with his findings. Therefore, it was not error per se for the administrative law judge to give her opinion more weight.
--------
There remains the possibility that the administrative law judge's errors when evaluating the opinion of Dr. Hamill was harmless. See Wilson, 378 F.3d at 546-47. A review of Dr. Hamill's opinion does not reveal that his opinion was "so patently deficient that the Commissioner could not possibly credit" it. See Wilson, 378 F.3d at 547. Consequently, the administrative law judge's errors were not harmless. See Bowen, 478 F.3d at 747-48.
In conclusion, the Court finds that the administrative law judge did not adequately address the factors in §404.1527(c)(2)-(6) in determining what weight to give Dr. Hamill's opinion as a treating physician, nor did he explain the weight being accorded other non-treating sources pursuant to Rule 96-6p. On remand, the administrative law judge shall apply the treating physician analysis to Dr. Hamill's opinion and explain the weight being given to his opinion. The administrative law judge shall also explain the weight being given to the other psychological opinions in the case.
This case is REMANDED to the Commissioner of Social Security for further proceedings consistent with this Opinion & Order. The Clerk of Court is DIRECTED to enter JUDGMENT remanding this case to the Commissioner.
s/Mark R. Abel
United States Magistrate Judge