The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge
This Matter is before the Court on the Magistrate Judge's Report and Recommendation (doc. 11), to which there were no objections. For the reasons indicated herein, the Court ADOPTS and AFFIRMS the Magistrate Judge's Report and Recommendation to the extent it finds the ALJ made reversible error in his determination of non-disability. As there is substantial evidence supporting a finding of disability, the Court REJECTS the Magistrate Judge's recommendation that the matter be remanded, and instead REVERSES the ALJ's decision and AWARDS Disability Insurance Benefits to Plaintiff.
On May 27, 2006, Plaintiff filed an application for Disability Insurance Benefits (DIB), alleging a disability onset date of October 1, 2005, due to a bad back, fibromyalgia, seizures, and depression (doc. 22). After Plaintiff's claims were denied initially and upon reconsideration, she requested a hearing de novo before an Administrative Law Judge (ALJ) (Id.). On November 9, 2009, the ALJ entered his decision denying Plaintiff's DIB application (Id.). The Appeals Counsel denied Plaintiff's request for review (Id.). Therefore, the ALJ's decision stands as the Defendant's final determination (Id.).
In his Findings, the ALJ determined that none of Plaintiff's impairments, or combination thereof, meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Id.). Further, although the ALJ determined that Plaintiff could not perform her prior work as a registered nurse, he concluded based upon testimony from the vocational expert (VE) that considering claimant's age, education, work experience, and residual functional capacity (RFC), there are jobs that exist in significant numbers in the national economy that the claimant can perform (Id. citing 20 C.F.R. 404.1569, 404.1569(a)). Therefore, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations and was not entitled to DIB (Id.).
On appeal to this Court, Plaintiff maintains that ALJ Armstead erred by: (1) improperly rejecting the opinion of Plaintiff's treating psychiatrist; and (2) inadequately assessing Plaintiff's pain and credibility (Id.).
A. First Assignment of Error
In her first assignment of error, Plaintiff complains that the ALJ improperly rejected the findings and conclusions of her treating psychiatrist, Doug S. Moon, M.D. in favor of opinions given by less qualified state consultants (Id.). Dr. Moon, who first examined Plaintiff in May 2006, opined on several occasions in 2007 and 2008 that Plaintiff would be unable to maintain employment due to a combination of her depression and chronic physical pain (Id.). Although Dr. Moon did not treat Plaintiff for physical symptoms, he repeatedly explained that Plaintiff's chronic pain heightened her depression, and vice versa, resulting in disability (Id.). The Magistrate Judge found that Dr. Moon's records reflect a consistent and continuing decrease in Plaintiff's activity level, corresponding with an increase in the severity of her symptoms over time (Id.).
The Magistrate Judge indicated that although the ultimate determination of disability is reserved to the Commissioner, Dr. Moon's opinions were entitled to "controlling weight" to the extent that they were "well-supported" (Id.). The Magistrate Judge added that by contrast, if the treating physician's opinion is not supported by objective medical evidence, the ALJ is entitled to discredit the opinion as long as he sets forth a reasoned basis for his rejection (Id. citing Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
Dr. Moon opined that Plaintiff would meet or equal a Listed impairment (Id.). Dr. Moon also provided multiple opinions concerning Plaintiff's functional abilities in a workplace setting (Id.). Support for Dr. Moon's opinions is found in his written assessments, correspondence, and clinical notes (Id.). Dr. Moon indicated on multiple occasions in February and March 2008 that Plaintiff would be unable to adjust to or function in a workplace environment as a result of her pain and depression (Id.). Few of Dr. Moon's records support the Defendant's non-disability finding, although two records in August and October of 2007 suggested that Plaintiff's condition was improving, at least temporarily (Id.).
In his decision, the ALJ first rejected Dr. Moon's conclusion that Plaintiff's symptoms were severe enough to meet or equal a Listed impairment (Id.). The ALJ's opinion focused on the infrequency with which Dr. Moon saw Plaintiff and on the limited number of chart notes supplied (Id.). The ALJ also pointed to inconsistencies between Dr. Moon's opinions and his responses to a checklist of categories involving making work, performance, and social adjustments, all but one of which were "unlimited/very good" to "fair" (Id.). Thus, although the ALJ focused on Dr. Moon's opinion that Plaintiff's symptoms met or equaled a Listed impairment, the ALJ also rejected all of Dr. Moon's assessments of Plaintiff's functional abilities (Id.).
The Magistrate Judge said that like the ultimate determination of disability - discussed above - the determination of a plaintiff's RFC is reserved to the Commissioner (Id.). An ALJ must give controlling weight to the opinions of treating physicians, but where conclusions are not substantiated by objective evidence, the ALJ is not required to credit those conclusions (Id. citing Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 287 (6th Cir. 1994)).
Plaintiff argues that the ALJ's wholesale rejection of Dr. Moon's multiple opinions reflects four errors: (1) a failure to reference Plaintiff's treatment with the psychotherapist who worked with Dr. Moon; (2) a misinterpretation of Plaintiff's treatment regimen; (3) a failure to provide "good reasons"; and (4) over-reliance upon state agency consultants (Id.). Because they are closely related, the Magistrate Judge considered the first three assignments of error together (Id.). Plaintiff also briefly discussed a fifth error: that the ALJ improperly rejected Dr. Moon's opinions concerning the combination of Plaintiff's chronic pain and depression (Id.).
The Magistrate Judge found that the ALJ erred in failing to acknowledge the records of Plaintiff's treating psychotherapist, Audrey Berlin, MS, LPC, and that that error in turn led to a mischaracterization of the frequency and extent of Plaintiff's mental health treatment (Id.). The Magistrate Judge found that due to the ALJ's mischaracterization of the record, the ALJ's reasons for rejecting Dr. Moon's assessment in total do not satisfy the regulatory requirement that an ALJ provide "good reasons" for rejecting the opinions of treating physicians (Id.).
The Magistrate Judge stated that Social Security regulations require consideration of all medical opinions, not just those of treating physicians (Id. citing 20 C.F.R. § 1527(d)). As a psychotherapist Ms. Berlin is not an "acceptable medical source" such as a treating physician or licensed psychologist; therefore, her opinions are not entitled to "controlling weight" (Id. citing 20 C.F.R. §§ 404.1527(a)(2); 404.1527(d); 416.927(a)(2); 416.927(d)). Nevertheless, the ALJ could not simply ignore her opinions (Id.). Opinions from medical sources who are not "acceptable" medical sources should still be considered under the factors set forth in 20 C.F.R. § 404.1527(d)(2), including "how long the source has known the individual, how consistent the opinion is with other evidence, and how well the source explains the opinion" (Id. citing Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007)). The Magistrate Judge found that Ms. Berlin's records provide ...