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Nju v. Berryhill

United States District Court, S.D. Ohio, Western Division, Dayton

October 27, 2017

LINDA PRICE NJU, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          DECISION AND ENTRY

          SHARON L. OVINGTON UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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.

         The 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 disability.

         Plaintiff 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).

         II. Standard of Review

         Under 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 Cir.1985)).

         III. Discussion

         The 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).

         Review 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.

         Dr. 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. Id.

         Dr. 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.

         A 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.

         ALJ 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 ALJ, ...


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