Dimizio v. Social Security Administration, Commissioner of, No. 2:2016cv00006 - Document 39 (E.D. Tenn. 2017)
Court Description: ORDER granting 31 Motion for Summary Judgment; denying 32 Motion for Summary Judgment; adopting Report and Recommendations re 34 Report and Recommendations. This case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g)for further proceedings consistent with this Order. Signed by District Judge Harry S Mattice, Jr on 9/13/2017. (BDG, )
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Dimizio v. Social Security Administration, Commissioner of Doc. 39 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at GREENEVILLE DONNA DIMIZIO, Plaintiff, v. NANCY A. BERRYHILL, Acting Com m issioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-6 J udge Mattice Magistrate J udge Corker ORD ER On December 16, 20 16, United States Magistrate J udge Clifton L. Corker filed a Report and Recom m endation (Doc. 34) pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). Magistrate J udge Corker recom m ended that: (1) Plaintiff’s Motion for Sum m ary J udgm ent (Doc. 31) be granted; (2) Defendant’s Motion for Sum m ary J udgm ent (Doc. 32) be denied; and (3) that this case be rem anded for further proceedings. (Doc. 34 at 17). The basis for Magistrate J udge Corker’s recom m endation for rem and is that the ALJ failed to “give good reasons” for not affording controlling weight to Plaintiff’s treating source opinion. (Id. at 16). Defendant filed tim ely objections to the Magistrate J udge’s Report and Recom m endation. (Doc. 35). Specifically, Defendant argues that: (1) the Magistrate J udge erred in finding that the ALJ did not satisfy the procedural safeguards of the treating physician rule; (2) substantial evidence supports the ALJ ’s decision to give no evidentiary weight to the opinion of Plaintiff’s treating physician; and (3) substantial evidence supports the ALJ ’s conclusion that Plaintiff’s m ental im pairm ent was not severe. The Court, having conducted a de novo review of those portions of the record im plicated Dockets.Justia.com by Defendant’s objections to the Report and Recom m endation, agrees with Magistrate J udge Corker’s well-reasoned conclusions for the reasons stated herein. 28 U.S.C. § 636(b)(3). I. TREATIN G PH YSICIAN RU LE “[T]he Com m issioner’s regulations establish a hierarchy of acceptable m edical source opinions[.]’” Snell v. Com m ’r of Soc. Sec., 20 13 WL 3720 32, at *9 (S.D. Ohio J an. 30 , 20 13). A treating physician’s opinion m ust be afforded “controlling weight” if it is “well-supported by m edically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record.” LaRiccia v. Com m ’r of Soc. Sec., 549 Fed. Appx. 377, 384 (6th Cir. 20 13). Courts bestow this degree of deference to treating physician opinions because they “are likely to be . . . m ost able to provide a detailed, longitudinal picture of [a claim ant’s] m edical im pairm ent(s) and m ay bring a unique perspective to the m edical evidence that cannot be obtained from the objective m edical findings alone or from reports of individual exam inations[.]” 20 C.F.R. § 40 4.152(c)(2). When an ALJ does not give a treating source opinion controlling weight, he is still required to “determ ine how m uch weight is appropriate by considering a num ber of factors, including the length of the treatm ent relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician.” Blakely v. Com m ’r of Soc. Sec., 581 F.3d 399, 40 6 (6th Cir. 20 0 9); see also 20 C.F.R. § 40 4.1527(c). The United States Court of Appeals for the Sixth Circuit has stressed the im portance of disability decision m akers clearly articulating the weight they afford treating source opinions and their corresponding explanation: 2 Im portantly, the Com m issioner im poses on its decision m akers a clear duty to “always give good reasons in our notice of determ ination or decision for the weight we give [a] treating source’s opinion.” 20 C.F.R. § 40 4.1527(d)(2). Those good reasons m ust be “supported by the evidence in the case record, and m ust be sufficiently specific to m ake clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s m edical opinion and the reasons for that weight.” Soc. Sec. Rul. No. 96-2p, 1996 SSR LEXIS 9, at *12 (Soc. Sec. Adm in. J uly 2, 1996). This requirem ent is not sim ply a form ality; it is to safeguard the claim ant’s procedural rights. It is intended “to let claim ants understand the disposition of their cases, particularly in situations where a clam ant knows that his physician has deem ed him disabled and therefore m ight be especially bewildered when told by an adm inistrative bureaucracy that he is not.” W ilson, 378 F.3d at 544. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 20 11). Thus, relevant authority requires the ALJ to both clearly articulate his reasons for not assigning a treating physician opinion controlling weight and that these reasons be “good.” 20 C.F.R. § 40 4.1527(d)(2). Moreover, where an ALJ fails to adequately explain the weight given to a treating source opinion, it is not enough that substantial evidence otherwise supports his decision. W ilson v. Com m ’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 20 0 4) (“Although substantial evidence otherwise supports the decision of the Com m issioner in this case, reversal is required because the agency failed to follow its own procedural regulation, and the regulation was intended to protect applicants like [the plaintiff].”). II. MAGISTRATE JU D GE’S FIN D IN GS AN D CON CLU SION S The Court will only outline those portions of the Report and Recomm endation that are relevant to Defendant’s objections. As outlined above, Magistrate J udge Corker found that the ALJ erred in failing to adequately explain why he assigned no evidentiary weight to the treating source opinion issued by Dr. Harold Elliott. (Doc. 34 at 16). Dr. Elliott was Plaintiff’s treating psychiatrist for the duration of her alleged period of disability. He also provided treatm ent to Plaintiff before her alleged onset date of May 29, 20 13. In J anuary 3 20 13, Dr. Elliott issued a treating source opinion regarding the severity of Plaintiff’s lim itations. (Doc. 22-8). This opinion was included in the m edical records considered by the ALJ . The ALJ disregarded Dr. Elliott’s opinion in his decision denying benefits, however, writing only that the opinion “was prepared prior to the am ended alleged onset date” and concluding that it was “not assigned evidentiary weight.” (Doc. 22-2 at 20 ). In his Report and Recom m endation, Magistrate J udge Corker addressed Defendant’s contention that Plaintiff failed to dispute the ALJ ’s evaluation of any of her physicians’ opinions. Notwithstanding the brevity of Plaintiff’s argum ents in this regard, the Magistrate J udge found Plaintiff’s subm issions to be adequate as to Dr. Elliott’s opinion. Specifically, he reasoned, “Dr. Elliott is set out in plaintiff’s table of m edical sources, and it states that it was accorded no evidentiary weight. This is an assertion of error in the m aking of that finding, even if som ewhat unartfully raised.” Id. Magistrate J udge Corker then outlined relevant authority for the treating physician rule, and found that the rule applied to Dr. Elliott’s opinion. He found that “the ALJ ’s reason for giving the opinion no evidentiary weight, because it was rendered before the claim was filed, is an insufficient reason under the applicable regulations and the cases cited above.” Id. Magistrate J udge Corker noted that Dr. Elliott’s opinion was “rendered less than four m onths before the application for benefits was filed.” Id. Finally, the Magistrate J udge reasoned that although “there was other evidence m entioned by the ALJ to support his finding that the plaintiff did not have a severe im pairm ent . . . . that does not cure the failure to give good reasons for the weight given to Dr. Elliott.” Id. As to Plaintiff’s assertion that the ALJ erred in finding that she did not have a severe im pairm ent, the Magistrate J udge found that he could not determ ine that issue at 4 the current juncture. Rather, he found that its disposition “would have to wait until the ALJ explains the lack of weight given to Dr. Elliott.” (Doc. 34 at 17). III. D EFEN D AN T’S OBJECTION S Defendant first argues that Plaintiff did not sufficiently raise her argum ent regarding Dr. Elliott’s opinion in her Motion for Sum m ary J udgm ent to warrant subsequent review. (Doc. 35 at 3). Defendant further argues that Plaintiff raised specific argum ents in regard to other physicians, but not as to Dr. Elliott. (Id. at 4). Although the Court concedes that Plaintiff devoted only brief consideration to the issue, it disagrees with Defendant’s conclusion. Magistrate J udge Corker noted that Plaintiff cited Dr. Elliott’s opinion, stated that the ALJ assigned the opinion no evidentiary weight, and contended that the ALJ failed to follow the treating physician rule. (Docs. 31 at 4-5; 34 at 16). These efforts will suffice. That Plaintiff m ay have directed m ore specific attacks at other issues does not render her argum ents regarding Dr. Elliott void. Accordingly, the Court finds that this objection is without m erit and it will be OVERRU LED . Next, Defendant asserts that the ALJ com plied with the procedural safeguards of the treating physician rule in that his reason for assigning no weight to Dr. Elliott’s opinion was sufficiently specific. (Doc. 35 at 4). In the sam e vein, Defendant argues that the ALJ ’s reason for discounting Dr. Elliott’s opinion establishes a “good reason” and finds support in the record. (Id. at 4; 5-6). The only reason given by the ALJ for assigning no weight to Dr. Elliott’s opinion was that it predated the onset of Plaintiff’s disability by four m onths. (Doc. 22-2 at 20 ). As set forth above, an ALJ m ust set forth specific justifications for his disregard of a treating source opinion, and those justifications m ust constitute “good reasons.” 20 C.F.R. § 40 4.1527(d)(2). In his Report and Recom m endation, Magistrate J udge Corker 5 found flaws in the sufficiency of the ALJ ’s explanation rather than its specificity: “The Court is of the opinion that the ALJ ’s reason for giving the opinion no evidentiary weight, because it was rendered before the claim was filed, is an insufficient reason under the applicable regulations and cases cited above.” (Doc. 34 at 16). The Sixth Circuit has expressly held that it does “not endorse the position that all evidence or m edical records predating the alleged date of the onset of disability . . . are necessarily irrelevant or autom atically barred from consideration[.]” Deboard v. Com m ’r of Soc. Sec., 211 Fed. Appx. 411, 414 (6th Cir. 20 0 6). Rather, the Sixth Circuit “recognize[s] that evidence . . . predating the onset of disability, when evaluated in com bination w ith later evidence, m ay help establish disability.” Id. (em phasis in original). Other circuit court of appeals, including the Tenth Circuit, share this approach. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10 th Cir. 20 0 8) (holding that the ALJ is required to consider all evidence—including evidence predating an alleged onset date—and m ust specifically “discuss the significantly probative evidence he rejects”) (internal quotations om itted). In addition, relevant social security regulations provide that “[w]e will consider all evidence in your case record when we m ake a determ ination or decision whether you are disabled[.]” 20 C.F.R. § 40 4.1520 . Regulations further provide that “[r]egardless of its source, we will evaluate every m edical opinion we receive.” 20 C.F.R. § 40 4.1527(c). Several trial courts have expressly found an ALJ ’s disregard of a treating source opinion to be im proper when based on the reasoning that the opinion predated the claim ant’s onset date. See, e.g., O’Malley v. Com m ’r of Soc. Sec., 210 F. Supp. 3d 90 9, 915 (S.D. Ohio 20 16); Daniel v. Colvin, 20 15 WL 5530 210 , at *4 (S.D. Ohio Sept. 21, 20 15). In those cases, the court found the predating opinions especially relevant because they tended to support a finding of disability. Id. Likewise, the Sixth Circuit has held that the ALJ ’s failure to 6 discuss a highly relevant treating m edical source opinion “in any substantive way violates the requirem ent that adm inistrative agencies . . . explain their reasoning” and constitutes sufficient grounds for rem and. Keeton v. Com m ’r of Soc. Sec., 583 Fed. Appx. 515, 52929 (6th Cir. 20 14). In this case, Dr. Elliott’s opinion described Plaintiff’s ability to deal with the public, cope with stress, and relate predictably in social situations as “poor.” He opined that Plaintiff suffered from “severe PTSD” and that she was “unable to react to stress or confrontations without m arked distress or im pairm ent.” He stated that Plaintiff had “poor sleep, hypervigilance, autonom ic arousal, and irritability.” Finally, in regard to any work-related activities affected by an im pairm ent, Dr. Elliott explained that Plaintiff experienced “difficulty relating to co-workers and difficulty in reliability.” He also explained that her “stress reactivity causes irritability [and] hypervigilance leading to overreactions [and] . . . poor sleep.” (Doc. 22-8 at 195-197). Dr. Elliott issued his opinion a m ere four m onths before Plaintiff’s alleged disability onset date, and continued treating Plaintiff after her onset date. Curiously, the ALJ considered Dr. Elliott’s treatm ent notes for Plaintiff from as far back as 20 12, despite his later assertion that Dr. Elliott’s 20 13 opinion was irrelevant. (Doc. 22-2 at 17). Thus, the ALJ ’s failure to discuss the treating source opinion with any degree of depth is considerably troubling. Moreover, Dr. Elliott’s opinion suggests substantial m ental and behavioral lim itations, especially in areas of social functioning, and there is other evidentiary support for these conclusions in the record. The ALJ noted that Plaintiff avoided social activities and that Dr. Sim s (whose treating source opinion he assigned “great evidentiary weight”) reported that Plaintiff was depressed, anxious, and had restricted affect. (Doc. 22-2 at 19). Nonetheless, based on Plaintiff’s cooperative nature at 7 her other m edical appointm ents and adequate com m unication skills, the ALJ found only m ild lim itation in social functioning. Because Dr. Elliott’s opinion appears directly relevant to this particular analysis, the ALJ ’s om ission in exam ining Dr. Elliott’s opinion or providing adequate justification for that om ission cannot be construed as harm less error. Defendant cites Allen v. Com m ’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 20 0 9) for the proposition that a treating source opinion issued outside the relevant tim e period com prises a “good reason” for the ALJ rejecting that opinion. The Sixth Circuit’s holding in Allen, however, is m ore attenuated than what Defendant represents. In Allen, the ALJ rejected a treating source opinion that stated a claim ant’s sym ptom s were unchanged since 20 0 3. The ALJ explained that the reason he disregarded this opinion was that the physician had only begun treating the claim ant in 20 0 5, and there was no basis in the record to support a conclusion that the physician had any knowledge of the claim ant’s sym ptom s in 20 0 3. 561 F.3d at 651. The facts of Allen are readily distinguishable from this case, including but not lim ited to the fact that the ALJ provided a detailed explanation for why the treating source opinion carried little evidentiary weight. Here, the ALJ m erely stated that the opinion carried no weight because it predated Plaintiff’s onset date. For the reasons outlined above, such a conclusory justification is inadequate. In sum , Plaintiff was entitled to receive “good reasons” why Dr. Elliott’s opinion describing the nature and severity of her im pairm ents was not afforded controlling weight—or any evidentiary weight at all. See 20 C.F.R. § 40 4. 1527(c)(2). Additionally, it is not clear that the outcom e of Plaintiff’s disability determ ination would have been the sam e had Dr. Elliott’s opinion been considered. For these reasons, Defendant’s objections in this regard will be OVERRU LED . 8 Next, Defendant’s suggests that the ALJ ’s assignm ent of any evidentiary weight to Dr. Elliott’s opinion would have been im proper in light of Plaintiff’s previous disability claim and subsequent denial on February 21, 20 13. (Doc. 35 at 6). As outlined above, Dr. Elliott’s opinion issued on J anuary 24, 20 13. According to Defendant, if the ALJ assigned evidentiary weight to the opinion and “reconsidered Plaintiff’s prior claim on the m erits,” such an act could be characterized as a “constructive reopening” of the previous denial. (Id.). “[W]here a claim has been reconsidered on the m erits, it is properly treated as having been reopened as a m atter of adm inistrative discretion.” W alker v. Barnhart, 258 F.Supp.2d 693, 699 (E.D. Mich. 20 0 3) (citing King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996)). Such reconsideration by an ALJ is referred to as a “de facto or constructive reopening,” which is perm issible only in specific circum stances. Id.; see also 20 C.F.R. § 40 4.988(a)&(b) (stating that a claim m ay be reopened for any reason up to one year after a decision or m ay be reopened for good cause for up to four years.). “The m ere consideration of evidence from an earlier application,” however, “is not considered a reopening of an earlier claim .” W alker, 258 F. Supp. 2d at 699 (citing King, 90 F.3d at 235). The key factor when considering whether an ALJ has constructively reopened a previous claim is whether the ALJ was “seeking to determ ine whether [p]laintiff was actually disabled during the relevant tim e period for that claim .” Id. The Court finds that this objection is without m erit, as the “m ere consideration” of Dr. Elliott’s opinion—which issued during the pendency of Plaintiff’s prior disability claim —would not have autom atically rendered the prior case constructively reopened. Id. As outlined above, treating source opinions predating a claim ant’s onset of disability m ay nonetheless serve as relevant evidence when evaluated in com bination with later 9 evidence. DeBoard, 211 Fed. Appx. 411, 414 (6th Cir. 20 0 6). In any event, Defendant’s suggestion that the ALJ would have im properly utilized Dr. Elliott’s opinion to determ ine whether Plaintiff was disabled during the tim e period for her previous claim is purely speculative, and does not com pel a conclusion that the ALJ rightfully disregarded Dr. Elliott’s opinion as a treating physician. Thus, the objection will be OVERRU LED . Finally, Defendant argues that substantial evidence supports the ALJ ’s determ ination that Plaintiff did not have a severe m ental impairm ent. (Doc. 35 at 6). As correctly noted by Magistrate J udge Corker in his Report and Recom m endation, however, “the determ ination of [this] issue will have to wait until the ALJ explains the lack of weight given to Dr. Elliott.” (Doc. 34 at 17). The Court finds no cause to disturb this finding here, especially considering the contents of Dr. Elliott’s opinion. For this reason and those set forth in Magistrate J udge Corker’s Report and Recom m endation, this objection will be OVERRU LED . IV. CON CLU SION Accordingly, for the reasons set forth above, 1. The Court ACCEPTS and AD OPTS Magistrate J udge Corker’s findings of fact, conclusions of law, and recom m endations (Doc. 34) pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b); 2. Defendant’s objections (Doc. 35) are OVERRU LED ; 3. Plaintiff’s Motion for Sum m ary J udgm ent (Doc. 31) is GRAN TED ; 4. Defendant’s Motion for Sum m ary J udgm ent (Doc. 32) is D EN IED ; and 5. This case is REMAN D ED pursuant to sentence four of 42 U.S.C. § 40 5(g) for further proceedings consistent with this Order. 10 SO ORD ERED this 13th day of Septem ber, 20 17. / s/ Harry S. Mattice, Jr._ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 11
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