Opinion
Case No.: 1:13-cv-449
09-24-2014
MARY E. HOWARD, Plaintiff, v. CAROLYN W. COLVIN COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) THIS MATTER IS REMANDED TO THE ALJ UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g); AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to disability insurance benefits ("DIB") and supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 39-52) (ALJ's decision)).
I.
On August 28, 2009, Plaintiff filed applications for DIB and SSI alleging disability since March 28, 2009. (Tr. 39). Plaintiff alleges disability due to meralgia paresthetica, obesity, borderline intellectual functioning, schizophrenia paranoid type, post-traumatic stress disorder, and alcohol abuse. (Tr. 41). Her applications were denied initially and upon reconsideration. (Tr. 52-62, 66-71).
Meralgia paresthtica is a condition characterized by tingling, numbness, and burning pain in the outer thigh. Meralgia paresthetica is caused by compression of the nerve that supplies sensation to the skin surface of the thigh. Tight clothing, obesity or weight gain, and pregnancy are common causes of meralgia paresthetica.
A hearing was held before an ALJ on October 13, 2011. (Tr. 28-51). Plaintiff appeared with her attorney. (Tr. 60). Plaintiff and a vocational expert testified. (Tr. 28-51). The ALJ denied the claim on January 26, 2012, finding that Plaintiff was not disabled and retained the residual functional capacity ("RFC") to perform a reduced range of light work. (Tr. 36-52).
A claimant's RFC is the most physical exertion a claimant can perform in the workplace despite his or her impairments and any related symptoms, such as pain. 20 C.F.R. § 416.945(a). The assessment is based on all relevant evidence in the record and the claimant's ability to meet the physical, mental, sensory, and other requirements for work as described in 20 C.F.R. § 416. 945(b), (c), and (d). Roberts v. Comm'r of Soc. Sec., No. 3:12cv340, 2014 WL 1123564, at *11 (S.D. Ohio Mar. 20, 2014).
Plaintiff requested a review of the ALJ's decision. (Tr. 8-10). The Appeals Council denied review on April 30, 2012. (Tr. 1-4). Plaintiff then commenced this action in federal court pursuant to 42 U.S.C. §§ 405(g) and 1383(c) for review of the Commissioner's final decision.
At the time of Plaintiff's alleged onset date, she was 45 years old and was considered to be a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1563(c); 416.963(c). Plaintiff has a tenth grade education. (Tr. 44). Plaintiff's past relevant work included work as a cashier, meat cutter, assembler, quality assurance, and cook. (Tr. 101, 211).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.(Tr. 41-52).
2. The claimant has not engaged in substantial gainful activity since March 28, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: meralgia parasetica, obesity, borderline intellectual functioning, schizophrenia paranoid type, post-traumatic stress disorder, and alcohol abuse (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart A, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.9260).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she may only occasionally climb ramps and stairs, stoop, kneel crouch, and crawl, she may never climb ladders, ropes, or scaffolds, and she is limited to unskilled work without strict production requirements, in a nonpublic setting, with only occasional contact with others.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on May 13, 1964 and was 44 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416. 969, and 416.969(a)).
11. The claimant has not be under a disability, as defined in the Social Security Act, from March 28, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and, therefore, was not entitled to DIB or SSI. (Tr. 52).
On appeal, Plaintiff argues that: (1) the ALJ failed to give proper weight to the treating source's opinion without providing good reasons; and (2) the ALJ erred in using an incorrect legal standard for evaluating the report of the treating therapist. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Physical Impairments
Plaintiff has severe leg pain from meralgia parasthetica and requires a cane for ambulation. (Tr. 425, 577) ("needs cane to walk and walks very slowly"). Plaintiff had pain in the nerve distribution in her legs which was approximately a 6-7 out of 10 on her medication, and interfered with her activities of daily living. (Tr. 400, 409, 413, 633). Plaintiff alleged that her legs give out if she is on them for an extended period of time. (Tr. 414). Testing showed limited weakness over her entire left lower extremity. (Tr. 415). Plaintiff also suffers from obesity, weighing 247 pounds at a height of 5 feet-3 inches, for a BMI of 43.91. (Tr. 413). Notes upon examination report that Plaintiff is especially obese in her legs. (Tr. 723).
2. Psychological Impairments
Plaintiff has suffered from anxiety due to Post-traumatic Stress Disorder since childhood. Plaintiff was sexually abused by her brother from ages 8-14 or 15, witnessed her father beating her mother, and suffered physical abuse by her mother. (Tr. 523, 368).
Plaintiff met with Michael Nelson, Ph.D., ABPP, for a consultative examination at the request of the state agency. He found the following in January 2010:
• In slow learner classes since the seventh grade(Tr. 369, 370, 371).
• Let go from restaurant because she "gets mixed up" and could not follow cooking instructions
• "Extremely anxious and nervous throughout the entire evaluative session, occasionally becoming tearful. Her hands shook throughout"
• Attributed shakiness to being "scared of the shadows and voices" and became noticeably distressed talking about the shadows
• Very soft voice, seemed to whisper at times
• At times answered questions after a long latency
• Thought processes were fragmented
• Exhibits symptoms consistent with post-traumatic stress disorder related to being physically abused by her mother and sexually abused by her brother when she was growing up
• Experiencing auditory and visual hallucinations since she was very young
• Daughter noticed deterioration in Plaintiff's ability to perform household duties and care for children about ten years prior
• Some short term memory difficulties (seemed to have a hard time recalling some past events)
• Did not know her social security number
• Instructions and questions had to be repeated on a number of occasions
• Functioning in the mentally retarded range, likely has the ability to function in borderline range, but rational planned thought is impaired by her psychiatric difficulties
• Functioning in the mentally retarded range in terms of abstract reasoning
• Functioning in the mentally retarded borderline range in terms of immediate auditory recall, math
• Ability to make decisions affecting her future and conduct her living arrangements is rather poor (daughter had to move back home to care for her mother)
• Stays inside
• Does not watch much television because she hears "whispers" from people on television who say bad things and Plaintiff does not want them looking at her
• Daughter does the cooking, cleaning, and household chores for Plaintiff
• Significant difficulties reading
• Becomes intoxicated several times a month, which may be a maladaptive attempt to attenuate her marked feelings of distress related to her fragmented thought process
• Recurrent recollections on an almost daily basis of brother's past abuse (reportedly gets "real mad and sick" when she thinks about the abuse)
• Occasionally "wakes up screaming"
• Described intense psychological distress at exposure to cues that remind her of abuse, occasionally seeing things on TV
Dr. Nelson noted that Plaintiff had previously spent one year in jail for possession of one pound of marijuana with intent to sell, although she alleged that she was just using it for headache pain. (Tr. 369, 526).
Dr. Nelson diagnosed schizophrenia (paranoid type), PTSD, and alcohol abuse. (Tr. 372). Plaintiff was assigned a GAF score of 30, "based on the fact that her behavior is considerably influenced by hallucinations." (Tr. 372). Dr. Nelson concluded that Plaintiff's ability to understand, remember, and follow instructions was moderately impaired; her ability to maintain attention, concentration, persistence, and pace to perform simple repetitive tasks was moderately impaired; her ability to relate to others was extremely impaired; and she had extreme impairments in her ability to withstand the stress and pressure associated with day to day work activities. (Tr. 372-373).
The Global Assessment of Functioning ("GAF") is a numeric scale (1 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults. A GAF score of 30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas.
On January 20, 2010, Ms. Stillwell, a Licensed Professional Counselor, found that Plaintiff suffered from the following PTSD symptoms:
• hears voices say she is stupid and not worth anything(Tr. 520, 527, 532). Ms. Stillwell diagnosed Plaintiff as bipolar with psychotic features, PTSD, cannabis dependence without psychological dependence, migraines, degenerative nerve in the left leg, and overweight. (Tr. 588). She assigned Plaintiff a GAF score of 40.
• sees shadows that scare her
• mood is depressed with full stable, congruent affect
• sad facial expression
• poor insight and judgment
• flashbacks, nightmares, avoids places and people that make her recall the trauma
• avoids friends and family
• appears to use marijuana when she gets migraines or gets stressed out
• impaired in family relations, work, and judgment
A GAF score of 31-40 indicates some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood.
Plaintiff's mental illness began with childhood abuse. Plaintiff began hearing voices in her early twenties and she overdosed when she was in her mid-twenties. (Tr. 598). In her thirties, voices told her to cut herself and hurt other people at which point she vandalized a neighbor's house, and chased them. (Id.) Plaintiff's daughter testified that Plaintiff deals with anxiety by staying in the house. (Tr. 92). Since 2009, Plaintiff has not even walked three blocks to the nearest store by herself. (Tr. 94). Plaintiff's daughter has to help her pick out clothes, because she cannot make appropriate choices for the weather. (Tr. 89, 96).
In February 2010, psychologist Paul Tangeman, Ph.D., reviewed Plaintiff's record for the state agency. (Tr. 374-391). Dr. Tangeman determined that Plaintiff had moderate limitations in activities of daily living; moderate limitations maintaining social functioning; moderate limitations maintaining concentration, persistence or pace; and no episodes of decompensation. (Tr. 388). Dr. Tangemen noted that Plaintiff had reported depression for a few years, but the record was devoid of any inpatient stays or counseling. (Tr. 376). Dr. Tangeman also noted that when Plaintiff was seen in the ER in May 2009, she had normal mood and affect. (Tr. 339, 376). Dr. Tangeman concluded that Plaintiff retained the "capacity for simple, repetitive tasks without strict production standards/schedules, in a non-public setting, with limited contact with others." (Tr. 376).
In September 2010, Plaintiff's therapist referred to her fear and hallucinations as her "go to state" of anxiety and feeling unsafe after years of abuse. (Tr. 623). Records from April 2011 show Plaintiff was tearful, anxious, and preoccupied with fear, and had put garbage bags over her windows so that her neighbor could not see inside. (Tr. 646, 95). She cried throughout the therapy session saying, "I'm so tired of being scared." (Tr. 646). A typical therapy note from July 26, 2011 reflects that she was moderately anxious and depressed with a congruent affect, preoccupied with fear. Plaintiff was driven by her fear to her basement laundry room because she felt safe there. When on the first or second floors, she was fixated on being watched by the neighbors. (Tr. 673). Plaintiff's therapist referred to her as being a prisoner in her own home. (Tr. 679).
A treatment note from Ms. Daly on July 26, 2011 reflects that Plaintiff's mood was anxious and depressed and that she was spending more time in the basement laundry room, despite the hip pain it caused her to traverse the stairs. (Tr. 673). Plaintiff forced herself to go to the basement because there are no windows, so she feels safer. Plaintiff does not tell her daughter how often she goes into the basement, because she knows it would upset her daughter. (Tr. 88). During the October 2011 hearing, Plaintiff testified that she could not remember the last time that she had been at home by herself. (Tr. 87). She also testified that she did not feel safe going into the yard with her dog. (Id.)
In March 2012, Plaintiff attended her appointment at the Health Resource Center ("HRC"), presenting as depressed and tearful, with continued auditory command hallucinations telling her to hurt herself. (Tr. 35). Notes from an April 2012 session at the HRC indicate that Plaintiff covered the second-floor windows of her home with plastic garbage bags because she heard people talking directly outside her second-floor window. These windows already had drapes. (Tr. 87). The voices were getting worse which caused her depression to deepen. (Tr. 30). Later that month, Dr. White, her treating psychiatrist, noted that Plaintiff had ongoing audio command hallucinations telling her to hurt herself, but was able to make them less bothersome by working on jigsaw puzzles. (Tr. 28).
Notes from a May 2012 session at HRC indicate that Plaintiff was still having audio and visual hallucinations with mild paranoid delusions, but pushed herself to remove the black plastic bags from her windows. (Tr. 15). Later that month, she had to sell her rings because she was unable to pay her bills, which caused a "meltdown," where she "tore up" her basement, but later had no recollection of doing so. She had thoughts of suicide. (Tr. 14).
In June 2012, Plaintiff told her HRC therapist, Jeanne A. Daly, MA, PCC, that she was "tired of the voices." In July 2012, Plaintiff was not sleeping well and would wake up around 2-3 a.m. due to auditory hallucinations. (Tr. 23). She worked on a jigsaw puzzle until she was tired enough to go back to sleep. (Id.) This pattern had been going on for years. (Tr. 681) (waking up to internal voices "telling me things and calling me stupid").
Professional clinical counseling is a master's level license regulated by the Board of Behavioral Science Examiners (BBSE). PCC license holders can practice counseling and psychotherapy outside the schools in private practice or clinic settings.
In an August 2, 2012 session at HRC, Plaintiff discussed wanting to watch the Olympics "so bad," but was too fearful that the voices from the TV would start talking to her again, so she avoided watching. (Tr. 20). It was a significant accomplishment that month when she baked a cake for her grandson's birthday party. (Tr. 18). In September 2012, Plaintiff realized that she had been incorrect about her age, and was scared that she could forget such an important piece of information. (Tr. 13). The increased stress of deciding whether to visit her mother in a hospital increased her auditory hallucinations to the level that she was hearing voices during her therapy session. (Tr. 15). On September 6, 2012, Plaintiff forced herself to take a bus by herself to see her therapist because she felt like hurting herself, but the experience was "awful." (Tr. 16).
B.
First, Plaintiff alleges that the ALJ failed to give proper weight to her treating source, Dr. Cairns, and the examining physicians at the Health Resource Center.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as the treating physician rule, requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone of from reports of individual examinations, such as consultative examinations or brief hospitalizations.Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. § 416.927(d)(2)).
"The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Blakely, 581 F.3d at 406. "On the other hand, a Social Security Ruling explains that '[i]t is an error to give an opinion controlling weight simply because it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the case record.'" Id. (quoting Soc. Sec. Rule 96-2p, 1996 WL 374188, at *2 (July 2, 1996)). "If the ALJ does not accord controlling weight to the treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Blakely, 581 F.3d at 406 (citing 20 C.F.R. § 416.927(d)(2)).
"Closely associated with the treating physician rule, the regulations require the ALJ to 'always give good reasons in [the] notice of determination or decision for the weight' given to the claimant's treating source's opinion." Blakely, 581 F.3d at 406 (citing 20 C.F.R. §416.927(d)(2)). "These good reasons must be 'supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Blakely, 581 F.3d at 406-07 (citing Soc. Sec. Rule 96-2p, 1996 WL 374188 at 5).
The Wilson Court explained the two-fold purpose behind the procedural requirement: The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases, particularly in situations where a claimant knows that his physician has deemed him disabled and therefore might be especially bewildered when told by an administrative bureaucracy that she is not, unless some reason for theWilson, 378 F.3d at 544.
agency's decision is supplied. Snell v. Apfel, 177 F.3d 128, 134 (2nd Cir. 1999). The requirement also ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule.
"Because the reason-giving requirement exists to ensure that each denied claimant received fair process, the Sixth Circuit has held that an ALJ's 'failure to follow the procedural requirement of identifying the reasons for discounting the opinions and for explaining precisely how those reasons affected the weight' given 'denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007) (emphasis in original).
The ALJ chose to discount the opinions of the consultative psychologist, the treating psychiatrist, and the treating therapist in favor of a non-examining source, Dr. Tangeman. (Tr. 376). However, Dr. Tangeman failed to thoroughly review the treatment record. For example, Dr. Tangeman found that Plaintiff "has no [history] of... [psychiatric] counseling," despite the fact that the record contains multiple treatment notes from psychiatrists and counselors. (Id.)
"[T]he Commissioner's regulations establish a hierarchy of acceptably medical source opinions[.]" Snell v. Comm'r of Soc. Sec., No. 3:12-cv-119, 2013 U.S. Dist. LEXIS 14846, at *9 (S.D. Ohio Jan. 30, 2013). Treating physicians and psychologists top the hierarchy. "Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once." Id. "[N]on-examining physicians opinions are on the lowest rung of the hierarchy of medical source opinions." Id.
It is important to note that Dr. Tangeman reviewed the record in February 2010, before the majority of mental health records. However, there were, at the very least, mental health records from Theresa Stillwell, doctors at HRC, and Dr. Nelson, before February 2010.
Moreover, the ALJ failed to properly address the opinions of the treating mental health providers at the HRC and treating psychiatrist, Dr. Bryan Cairns. The ALJ gave Dr. Cairns' opinion little weight because of the length and frequency of treatment and Plaintiff's substance abuse diagnosis.
The ALJ claims Dr. Cairns medical questionnaire was "submitted with an illegible signature." However, Dr. Cairns printed his last name below the signature line, creating a nexus between the questionnaire and his other treatment notes in the record. (Tr. 49, 668).
While Plaintiff only saw Dr. Cairns twice, she had been treated at the HRC for over two years. Plaintiff sees a psychiatrist at HRC every two or three months to make adjustments to her medication, and all of the treating physicians at HRC had access to her file. (Tr. 49). While Plaintiff does not have a substantial longitudinal treatment history with Dr. Cairns alone, Plaintiff does have a significant treatment history with Dr. Cairns and the physicians at HRC. Even if this Court were to construe Dr. Cairns and HRC as examining physicians, they are still entitled to more weight than the non-examining physician, Dr. Tangeman.
Plaintiff was seen by multiple physicians at the HRC, including Dr. Cairns. All of the physicians had access to Plaintiff's file.
The ALJ also argues that Dr. Cairns failed to address Plaintiff's substance abuse diagnosis. (Tr. 49). While counselor Theresa Stillwell and the state agency's psychiatrist, Dr. Michael Nelson, both reference substance abuse issues in their notes, there is no other mention of Plaintiff having a substance abuse problem. Moreover, the ALJ did not find that Plaintiff's marijuana use had a material effect on her disability.
"[A]n individual shall not be considered disabled... if alcoholism or drug addiction would... be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382C(a)(3)(J).
In rejecting Dr. Cairns' and the HRC's observations, the ALJ relied on Dr. Tangeman's findings that Plaintiff had the ability to interact with others and withstand stress. However, Dr. Tangeman never interacted with Plaintiff. In support of his finding, he simply referred to the fact that Plaintiff interacted with her daughter, the same daughter who returned home in order to take care of Plaintiff. Dr. Tangeman also noted that Plaintiff had the ability to withstand stress, because on one occasion in May 2009, she reportedly had a normal mood and affect. (Tr. 340). However, the fact that Plaintiff had normal mood and affect during are emergency room visit does not alone support a finding that Plaintiff can withstand stress. Moreover, the record contains significant evidence that Plaintiff experiences hallucinations and is unable to live independently. (Tr. 673).
Plaintiff's daughter stated, "[m]y mom needed me. She couldn't do anything on her own. She was slipping away." (Tr. 91).
The ALJ also maintained that Plaintiff's statements were inconsistent with the entirety of the record. For example, the ALJ notes that Plaintiff testified that she "rarely sees anyone except her daughter, seeing a friend only once a year." (Tr. 49). The ALJ claimed this statement was inconsistent with the record because Plaintiff later mentions seeing "her neighbor to purchase marijuana." (Id.) The fact that Plaintiff used to buy marijuana from a neighbor does not contradict a finding that she cannot interact with others. In fact, Plaintiff's daughter testified that she tried to get Plaintiff to see her friend more often, to no avail. (Tr. 93). The ALJ also took issue with the fact that Plaintiff "had difficulty concentrating, but then she stated that she enjoys doing puzzles." (Tr. 49, 50). However, the fact that Plaintiff enjoys doing puzzles does not mean she can concentrate. When asked about difficulties with concentration, Plaintiff stated, "... trying to put something together like my puzzles, it takes me a very long time [to] do it." (Tr. 80).
Plaintiff stated that she used to buy marijuana from her neighbor. (Tr. 84). However, the neighbor has since moved. (Id.)
In arguing that the ALJ's opinion is supported by substantial evidence the Commissioner states that Plaintiff socializes with her daughter on a daily basis, helps care for her dog, and helps with household chores. However, the Commissioner misconstrues the facts. Plaintiff's daughter moved home in order to care for her mother, Plaintiff does not care for her dog but only pets her belly, and Plaintiff's daughter testified that she does not allow her mother to help with laundry or cooking due to incidences of "[getting] confused easily." (Tr. 93).
Accordingly, the ALJ improperly gave more weight to Dr. Tangeman, the reviewing physician, instead of Dr. Cairns and the physicians at the Health Resource Center. Therefore, the ALJ's decision is not supported by substantial evidence.
At the hearing, Plaintiff testified that she meets Social Security Listing 12.06(C), Anxiety Related Disorders. This listing requires that Plaintiff have medically documented findings of at least one of the following: (A)(1) generalized persistent anxiety accompanied by three out of four of the following signs or symptoms: (a) motor tension, or (b) autonomic hyperactivity, or (c) apprehensive expectation, or (d) vigilance and scanning; or (2) a persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or (3) recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or (4) recurrent obsessions or compulsions which are a source of marked distress; or (5) Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress; and (C) resulting in complete inability to function independently outside the area of one's home. 20 C.F.R. § 404 App. 1.
Plaintiff also asserts that she meets Social Security Listing 12.04, Affective Disorders. This listing requires that Plaintiff have a "medically documented history of chronic affective disorder of at least two years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support." The listing also requires one of the following: (1) repeated episodes of decompensation, each of extended duration; or (2) a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or (3) current history of one or more years inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. (Id.)
There is no indication that the ALJ evaluated either Listing.
C.
Next, Plaintiff alleges that the ALJ erred by using the incorrect legal standard in evaluating the opinions of her treating counselor, Ms. Jeanne Daly.
Ms. Daly is a counselor at Health Resource Center. She has a master's degree in counseling and a degree as a Professional Clinical Counselor. While Ms. Daly is not an acceptable medical source pursuant to the regulations, her opinion is still relevant:
Since there is a requirement to consider all relevant evidence in an individual's case record, the case record should reflect the consideration of opinions from medical sources who are not "acceptable medical sources" and from "non-medical sources" who have seen the claimant in their professional capacity. Although there is a distinction between what an adjudicator must consider and what the adjudicator 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, when such opinions may have an effect on the outcome of the case.SSR 06-03P, 2006 SSR LEXIS 5, at *6 (S.S.A. Aug. 9, 2006). When evaluating opinion evidence from medical sources who are not "acceptable medical sources," certain factors should be considered, including: (1) how long the source has known and how frequently the source has seen the individual; (2) how consistent the opinion is with other evidence; (3) the degree to which the source presents relevant evidence to support an opinion; (4) how long the source has known and how frequently the source has seen the individual; (5) how consistent the opinion is with other evidence; (6) the degree to which the source presents relevant evidence to support an opinion; (7) how well the source explains the opinion; (8) whether the source has a specialty or area of expertise related to the indiviual's impairment(s) and; (9) any other factors that tend to bear on the opinion. (Id.)
The ALJ gave Ms. Daly's opinion little weight because: (1) it "does not provide any information regarding the length and frequency of the claimant's treatment"; and (2) it "does not provide any specific diagnoses, instead only describing the claimant's symptoms." (Tr. 47). However, the record clearly indicates that Ms. Daly has been treating Plaintiff bi-weekly for two years. (Tr. 12). Moreover, the fact that Ms. Daly did not provide any specific diagnosis does not undermine her observations or objective findings. As a counselor, Ms. Daly is required to record Plaintiff's symptoms, not make diagnoses. Accordingly, the ALJ erred in giving Ms. Daly's opinion little weight as Plaintiff's treating counselor.
Mental impairments do not have to be supported by objective medical evidence. "Mental impairment alone may result in disability entitling the one suffering therefrom to disability benefits under the Social Security Act. Such impairment may be medically determinable[,] but, in [only a] few cases, [can] a conclusion of such impairment be supported by objective clinical findings." Sayers v. Gardner, 380 F.2d 940, 949 (6th Cir. 1967).
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III.
A sentence four remand provides the required relief in cases where there is insufficient evidence in the record to support the Commissioner's conclusions and further fact-finding is necessary. See Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citations omitted). In a sentence four remand, the Court makes a final judgment on the Commissioner's decision and "may order the Secretary to consider evidence on remand to remedy a defect in the original proceedings, a defect which caused the Secretary's misapplication of the regulations in the first place." Id. at 175. "It is well established that the party seeking remand bears the burden of showing that a remand is proper under Section 405." Culbertson v. Barnhart, 214 F. Supp. 2d 788, 795 (N.D. Ohio 2002) (quoting Willis v. Sec'y of Health & Human Servs., 727 F.2d 551 (6th Cir. 1984)).
IV.
Based upon the foregoing, the Court concludes that remand is appropriate in the matter because there is insufficient evidence to support the ALJ's decision.
IT IS THEREFORE ORDERED that the decision of the Commissioner to deny Mary Howard benefits is REVERSED, and this matter is REMANDED under sentence four of 42 U.S.C. § 405(g).
On remand, the ALJ shall: (1) consider the totality of the evidence without drawing improper conclusions based on portions of the record; (2) reweigh the opinions of Dr. Cairns, Therapist Daly, the examining physicians at the Health Resource Center, and Dr. Tangeman, and address the requirements of 20 C.F.R. § 404.1527(d)(2); (3) reassess Plaintiff's residual functional capacity; and (4) determine whether Plaintiff meets Listing 12.04 and/or 12.06(C).
The Clerk shall enter judgment according, whereupon this case shall be CLOSED in this Court.
IT IS SO ORDERED. Date: 9/24/13
s/ Timothy S. Black
Timothy S. Black
United States District Judge