United States District Court, S.D. Ohio, Western Division, Dayton
DECISION AND ENTRY
L. OVINGTON UNITED STATES MAGISTRATE JUDGE.
Linda Price Nju applied for period of disability and
Disability Insurance Benefits on July 7, 2011 and for
Supplemental Security Income on March 13, 2012. She asserted
that she has been under a benefits-qualifying disability
since April 4, 2008. Administrative Law Judge (ALJ) Irma J.
Flottman concluded that she was not eligible for benefits
because she is not under a “disability” as
defined in the Social Security Act.
Appeals Council denied Plaintiff's request for review,
and she filed a previous action in United States District
Court for the Southern District of Ohio. See Price Nju v.
Comm'r of Soc. Sec., 3:14-cv-455, 2016 WL 74998
(S.D. Ohio Jan. 7, 2016) (Report & Recommendation),
adopted 2016 WL 319869 (S.D. Ohio Jan. 26, 2016).
The Court vacated the Commissioner's decision and
remanded the case pursuant to sentence four of 42 U.S.C.
§ 405(g) for further administrative proceedings.
Id. at *2. Upon remand, on December 22, 2014, ALJ
Mark Hockensmith found that Plaintiff was not under a
challenges the ALJ's non-disability decision in the
present case. The parties agree that a remand to the Social
Security Administration is warranted. They disagree, however,
on whether the remand should be for an award of benefits in
Plaintiff's favor or whether further administrative
proceedings are needed. The case is before the Court upon the
Commissioner's Motion to Remand (Doc. #12),
Plaintiff's Response (Doc. #13), and the administrative
record (Doc. #6).
Standard of Review
sentence four of 42 U.S.C. § 405(g), the Court has
authority to affirm, modify, or reverse the
Commissioner's decision “with or without remanding
the cause for rehearing.” Melkonyan v.
Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further
proceedings or an immediate award of benefits. E.g.,
Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 410
(6th Cir. 2009); Felisky v. Bowen, 35 F.3d 1027,
1041 (6th Cir. 1994). “Generally, benefits may be
awarded immediately ‘only if all essential factual
issues have been resolved and the record adequately
establishes a plaintiff's entitlement to
benefits.'” Kalmbach v. Comm'r of Soc.
Sec., 409 F. App'x 852, 865 (6th Cir. 2011)
(quoting, in part, Faucher v. Sec'y of Health &
Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)). A
judicial award of benefits is proper “only where the
proof of disability is strong, and opposing evidence is
lacking in substance, so that remand would merely involve the
presentation of cumulative evidence, or where the proof of
disability is overwhelming.” Id. (citing
Faucher, 17 F.3d at 176; Felisky, 35 F.3d
at 1041; Mowery v. Heckler, 771 F.2d 966, 973 (6th
Commissioner seeks remand of this case for further
administrative proceedings and a new decision. According to
the Commissioner, “Upon receipt of the Court's
order, the Appeals Council will instruct the Administrative
Law Judge to reevaluate the opinions of the state agency
reviewing psychologists as previously ordered by the Court,
develop the administrative record as necessary to determine
whether Plaintiff is disabled within the meaning of the
Social Security Act, and issue a new decision.” (Doc.
#12, PageID #2610).
of the evidence of record, including Plaintiff's medical
history and the medical-source opinions, reveals the presence
of strong evidence that Plaintiff was under a
benefits-qualifying disability. The strong evidence includes
opinions presented by Plaintiff's treating medical
source, Dr. Patel.
Patel completed a mental impairment questionnaire on February
4, 2013. (Doc. #6, PageID #1480). He diagnosed
Bipolar I Disorder, recurrent, mixed, and alcohol and cocaine
dependence in full sustained remission. Id. He
identified Plaintiff's signs and symptoms: sleep
disturbance, mood disturbances, emotional lability, recurrent
panic attacks, anhedonia or pervasive loss of interests,
difficulty thinking or concentrating, two suicide attempts,
decreased energy, racing thoughts, generalized persistent
anxiety, and hostility/irritability. Id. at 1480-81.
Plaintiff's treatment includes individual therapy, case
management, and several medications-Invega, Cymbalta,
Wellbutrin SR, Trazadone, and Neurontin. Id. at
1481. Despite treatment, her prognosis is guarded.
Patel opined that Plaintiff's psychiatric condition
exacerbates her experience of pain and can lower her pain
threshold. Id. Additionally, he indicated Plaintiff
has a moderate restriction of activities of daily living;
moderate difficulties in maintaining social functioning;
marked deficiencies of concentration, persistence, or pace
resulting in failure to complete tasks in a timely manner;
and marked episodes of deterioration or decompensation in
work. Id. at 1482. On average, Plaintiff would be
absent from work more than three times a month as a result of
her impairments and treatment. Id. Dr. Patel
concluded, “Due to chronic anxiety, mood lability,
trouble being around people and back pain, she is unlikely to
work 40 hours/week.” Id.
review of ALJ Hockensmith's decision reveals many errors
and the strength of Dr. Patel's opinions. ALJ Hockensmith
acknowledges that this “Court remanded the
claimant's applications for more thorough evaluation of
medical source opinion evidence.” (Doc. #6,
PageID #117) (internal citation omitted). He then
discusses some of the problems raised by the Court. The ALJ
begins, “In addressing the issues raised by the Court
in its remand order, it is important to recognize that at the
time that he rendered his opinion evidence, Dr. Patel had, by
his own estimate, treated the claimant only a few times
(‘every 2-3 months' over the course of one
year).” Id. at 126. Although the length of
treatment relationship and frequency of examination are
factors to be considered, it is also “important to
recognize” that “these factors are properly
applied only after the ALJ has determined that a
treating-source opinion will not be given controlling
weight.” Gayheart v. Comm'r of Soc. Sec.,
710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. §
404.1527(c)(2)). Further, Dr. Patel saw Plaintiff six times
between February 7, 2012 and February 4, 2013-an average of
every two months. (Doc. #6, PageID #s 1402, 1425,
1445, 1462, 2438, 2540). The ALJ further omits that
Plaintiff-in addition to treatment with Dr. Patel-attended
individual therapy at Daymont. Specifically, during that same
time period, Plaintiff saw a counselor fourteen times.
Id. at 2418-516.
Hockensmith added, “It is interesting to note that on
the date he completed his assessment of the claimant's
mental condition (February 4, 2013), the evidence shows that
his most recent prior contact with the claimant had been on
October 15, 2012 - more than three months earlier. Hence, the
claimant was not being treated very often by Dr.
Patel.” Id. at 127 (citation omitted). The