Michael J. Newman, United States Magistrate Judge
This Social Security disability benefits appeal is before the undersigned for disposition based upon the parties consent. Doc. 8. At issue is whether the Administrative Law Judge (ALJ) erred in finding Plaintiff not disabled and therefore unentitled to Supplemental Security Income (SSI). This case is before the Court on Plaintiffs Statement of Errors (doc. 10), the Commissioners memorandum in opposition (doc. 12), Plaintiffs reply (doc. 13), the administrative record (doc. 5), and the record as a whole.
I.
A. Procedural History
Plaintiff filed for SSI alleging disability as a result of a number of impairments including, inter alia , fibromyalgia, an anxiety disorder, and an affective (depressive) disorder. PageID 545.
Plaintiff filed for SSI in 2010 and, after an initial denial of her application, received a hearing before ALJ Thomas McNichols on September 28, 2012. PageID 59. ALJ McNichols issued a written decision on November 6, 2012 finding Plaintiff not disabled. PageID 59-76. After the Appeals Council denied Plaintiffs request for a review of the ALJs decision, Plaintiff filed an appeal with this Court. PageID 541-42. Finding that the ALJ erred in his analysis of Plaintiffs treating physician, this Court remanded for further proceedings. Foster v. Colvin , No. 3:14-cv-66, 2015 WL 66553 (S.D. Ohio Jan. 5, 2015).
Plaintiff then received a second administrative hearing before ALJ Elizabeth Motta on July 27, 2015. PageID 634. ALJ Motta issued a written decision October 28, 2015, again finding Plaintiff not disabled. PageID 771-90. Finding that ALJ Mottas decision did not sufficiently address this Courts directives on remand, the Appeals Council vacated the non-disability finding and remanded the case for further proceedings. PageID 799-801. Specifically, the Appeals Council directed ALJ Motta to give further consideration to treating source opinion evidence with particular emphasis on SSR 12-2p in conjunction with the claimants fibromyalgia and explain the weight given to such opinion evidence. PageID 542.
ALJ Motta held a third administrative hearing on October 26, 2016. PageID 578-606. For a third time, an ALJ issued a written decision finding Plaintiff not disabled. PageID 541-68. Specifically, ALJ Motta found at Step Five that, based upon Plaintiffs Residual Functional Capacity (RFC) to perform a reduced range of light work, there were jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed[.] PageID 567.
Thereafter, the Appeals Council denied Plaintiffs request to review ALJ Mottas December 29, 2016 decision, making her non-disability finding the final administrative decision of the Commissioner. PageID 529-32. See Casey v. Secy of Health & Human Servs. , 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely appeal. Cook v. Commr of Soc. Sec. , 480 F.3d 432, 435 (6th Cir. 2007). This December 29, 2016 non-disability finding by ALJ Motta (hereinafter, ALJ) is now before the Court for review.
B. Evidence of Record
The evidence of record is adequately summarized in the ALJs decision (PageID 541-68), Plaintiffs Statement of Errors (doc. 10), the Commissioners memorandum in opposition (doc. 12), and Plaintiffs reply (doc. 13). The undersigned incorporates all of the foregoing and sets forth the facts relevant to this appeal herein.
II.
A. Standard of Review
The Courts inquiry on a Social Security appeal is to determine (1) whether the ALJs non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g) ;
Bowen v. Commr of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews , 574 F.2d 359, 362 (6th Cir. 1978).
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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). When substantial evidence supports the ALJs 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. Buxton v. Halter , 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a zone of choice within which he [or she] can act without the fear of court interference. Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJs legal analysis -- may result in reversal even if the ALJs decision is supported by substantial evidence in the record. Rabbers v. Commr of Soc. Sec. , 582 F.3d 647, 651 (6th Cir. 2009). [A] decision of the Commissioner will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right. Bowen , 478 F.3d at 746.
B. Disability Defined
To be eligible for disability benefits, a claimant must be under a disability as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a disability includes physical and/or mental impairments that are both medically determinable and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in substantial gainful activity that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step ends the ALJs review, see Colvin v. Barnhart , 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:
1. Has the claimant engaged in substantial gainful activity?;
2. Does the claimant suffer from one or more severe impairments?;
3. Do the claimants severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioners Listing of Impairments (the Listings), 20 C.F.R. Subpart P, Appendix 1?;
4. Considering the claimants RFC, can he or she perform his or her past relevant work?; and
5. Assuming the claimant can no longer perform his or her past relevant work -- and also considering the claimants age, education, past work experience, and RFC -- do significant numbers of other jobs exist in the national economy which the claimant can perform?
20 C.F.R. § 416.920(a)(4) ; see also Miller v. Commr of Soc. Sec., 181 F. Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social Security Acts definition. Key v. Commr of Soc. Sec. , 109 F.3d 270, 274 (6th Cir. 1997).
III.
Plaintiff argues, and the undersigned agrees, that the ALJ erred on remand in: (1) evaluating the treating source opinions and medical evidence; and (2) failing to follow this Courts January 5, 2015 Remand Order. PageID 1211.
Until March 27, 2017, the Commissioners regulations [which apply to this appeal] establish[ed] a hierarchy of acceptable medical source opinions[.] Snell v. Commr of Soc. Sec. , No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the regulations then in effect, the opinions of treaters are entitled to the greatest deference because they are likely to be ... most able to provide a detailed, longitudinal picture of [a claimants] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.] 20 C.F.R. § 416.927(c)(2).
A treaters opinion must be given controlling weight if well-supported by medically acceptable clinical and laboratory diagnostic techniques and ... not inconsistent with the other substantial evidence in [the] case record. LaRiccia v. Commr of Soc. Sec. , 549 F. Appx 377, 384 (6th Cir. 2013). Even if a treaters opinion is not entitled to controlling weight, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of examination, the nature and extent 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. Blakley v. Commr of Soc. Sec. , 581 F.3d 399, 406 (6th Cir. 2009) ; see also 20 C.F.R. § 416.927(c).
After treaters, [n]ext in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. Snell , 2013 WL 372032, at *9.
Record reviewers are afforded the least deference and these non-examining physicians opinions are on the lowest rung of the hierarchy of medical source opinions. Id.
Here, the record contains the opinions of Plaintiffs treating physician of nineteen years, Rick Gebhart, D.O. Most recently -- in August 2016 -- Dr. Gebhart opined that, due to her fibromyalgia, depression, Post-Traumatic Stress Disorder (PTSD), and anxiety, Plaintiff is unable to be prompt and regular in attendance, withstand the pressure of meeting normal standards of work productivity, or complete a normal work day and work week without interruption from psychologically and physically-based symptoms without unreasonable rest periods. PageID 1179-81. Dr. Gebhart also concluded, based on his examinations and medical findings, that Plaintiff is unable to stand and walk for any amount of time during an eight-hour work day, and can sit for only 15-20 minutes at a time before needing half hour breaks to lie down. PageID 1811. Ultimately, Dr. Gebhart found that Plaintiff could absolutely no[t] perform even sedentary work. PageID 1833. Dr. Gebhart also authored opinions in 2010, 2012, and 2015, which consistently document similarly debilitating symptoms of Plaintiffs impairments. PageID 333, 476-83, 1023-26.
The ALJ declined to afford Dr. Gebharts opinions controlling or deferential weight, finding that the opinions are entirely unsupported ... and inconsistent with other substantial evidence in the case record. PageID 560. Upon determining that other medical records show normal muscle strength and tone, normal range of motion, and normal gait, the ALJ concluded that the only plausible explanation for the degree of limitation suggested by Dr. Gebhart is that he based his conclusions on the unsubstantiated allegations and subjective complaints of the claimant. Id.
The undersigned finds multiple errors in the ALJs assessment of Dr. Gebharts opinions. The undersigned initially notes that the ALJ erred in selectively focusing on the normal (i.e., non-disabling) aspects of Plaintiffs treatment notes to the exclusion of evidence supportive of Dr. Gebharts opinion. Hawthorne v. Commr of Soc. Sec., No. 3:13-cv-179, 2014 WL 1668477, at *11 (S.D. Ohio Apr. 25, 2014) (citing Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) ) (An ALJ must consider all the record evidence and cannot pick and choose only the evidence that supports his [or her] position); cf. Carter v. Commr of Soc. Sec., 137 F.Supp.3d 998, 1007 (S.D. Ohio 2015) (finding error where the ALJ referenced only normal findings while either ignoring or minimizing abnormal findings). For example, Dr. Gebharts own treatment notes document multiple tender points, exquisitely tender, affect poor; lethargic, depressed, anxious, and agitated moods; and limited range of motion and malalignment (knees). PageID 484-505, 1110-12, 1174.
Dr. Gebharts opinions are also consistent with the findings of the state agencys consultative physician, Damian Danopulos, M.D. Dr. Danopulos documented painful motion in all joints, sensitive muscles with palpation, painful spine with pressure, highly restricted and painful lumbar spine motion, and severe anxiety neurosis. PageID 375-76. Dr. Danopulos concluded that Plaintiffs ability to do any work-related activities is affected mainly from her lumbar spine arthritis plus aches and pains of her upper extremities and cervical spine and headaches. PageID 376. Because the record thus undermines the ALJs assertion that [t]here is no objective medical evidence to substantiate Dr. Gebharts opinion, PageID 556, the ALJ failed to overcome the rebuttable presumption that a treating physicians opinion is entitled to great deference. Rogers v. Commr of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).
Even assuming, arguendo, that Dr. Gebhart founded his conclusion on Plaintiffs subjective reports as the ALJ suggests, this does not provide a valid basis for discounting his opinions. Unlike medical conditions that can be confirmed by objective testing, fibromyalgia patients present no objectively alarming signs. Id. at 243. Indeed, [f]ibromyalgia patients manifest normal muscle strength and neurological reactions and have a full range of motion. Id. (quoting Preston v. Secy of Health & Human Servs., 854 F.2d 815, 820 (6th Cir. 1988) ). Nevertheless, the ALJ repeatedly cited Plaintiffs lack of objective medical evidence to discredit Dr. Gebharts opinions. PageID 559-60 (the claimants alleged symptoms and purported functional limitations are largely based on her self-reported pain complaints rather than objective medical evidence or clinical findings; objective medical evidence and clinical findings certainly do not support such and extreme degree of function limitation; there is clearly no objective medical evidence to substantiate such a drastic degree of functional limitation; clinical testing and examinations revealed no abnormalities anywhere near to a level of severity that would rationally account for the degree of limitation described by Dr. Gebhart). The nature of fibromyalgia itself renders such ... [an] overemphasis upon objective findings inappropriate. Rogers, 486 F.3d at 249. In light of the errors illuminated above, the undersigned finds reversible error in the ALJs assessment of Dr. Gebharts opinion.
The ALJ similarly erred in discounting the opinions of treating psychologists, C. Jesse Carlock, Ph.D., and Kathleen Glaus, Ph.D. Both Drs. Carlock and Glaus authored opinions concluding that Plaintiff would be absent from work more than three times a month; has marked restrictions of daily living; marked restrictions in concentration, persistence, and pace; and has extreme functional limitations due to episodes of deterioration or decompensation in work. PageID 445.
In affording their opinions little weight, the ALJ found it quite evident that any limitations described [by Drs. Carlock and Glaus] were based largely, if not entirely, on the Claimants subjective complaints and self-reported symptoms. PageID 552. Yet, the psychologists provided an extensive list of the clinical findings, treatment, and prognosis that demonstrate the severity of Plaintiffs mental impairments and symptoms. PageID 444. Moreover, Plaintiffs treatment notes from Drs. Carlock and Glaus document that she consistently exhibited a depressed, hopeless, anxious, anhedonic mood; concentration problems; and tearful behavior. Thus, the ALJs determination -- that the opinions of Drs. Carlock and Glaus lack any support -- is belied by a close reading of the medical record. PageID 552.
To the extent that the ALJ discounted the treating psychologists opinions because they relied on Plaintiffs subjective complaints, such an assessment demonstrates a fundamentally flawed understanding of mental impairments. Like fibromyalgia, a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as a medical impairment. Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989). Contrary to the ALJs assertion, the report of a psychiatrist [or other mental health personnel] should not be rejected simply because of ... the absence of substantial documentation. Id.
Next, the ALJ discounted Drs. Carlock and Glauss physical limitations on the grounds that the doctors are mental health professionals. PageID 552. The ALJ erred in this respect because she flouted both the instructions given to her on remand and the mandate of Social Security Regulation (SSR) 12-2p. Sullivan v. Hudson, 490 U.S. 877, 886, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989) ([D]eviation from the courts remand order in subsequent administrative proceedings is itself legal error); Foster, 2015 WL 66553, at *8 (Particularly troublesome with the ALJs rejection of Dr. Carlocks opinion is that he determined Dr. Carlock [ ] ... is well out of his area of expertise ... ). SSR 12-2p, on the contrary, states that the opinion of a psychologist can be used when considering a persons fibromyalgia. 2012 SSR Lexis 1, at *10-11. Thus, the ALJ again failed to comply with SSR 12-2p and, in so doing, also failed to establish good reasons for discounting the opinions of Plaintiffs treating psychologists. Mitchell v. Commr of Soc. Sec., 330 Fed. Appx 563, 569 (6th Cir. 2009).
Finally, the undersigned notes that, in her efforts to find Plaintiff not disabled, the ALJ erroneously evaluated Plaintiffs credibility. First, the ALJ found that the claimants alleged symptoms appear much more severe than any pathology shown on lumbar spine studies in the record. PageID 546. But, as explained above, fibromyalgia does not manifest in objective medical evidence like other physical impairments. Rogers, 486 F.3d at 249. Second, the ALJ repeatedly cited Plaintiffs lack of treatment as evidence that her impairments and symptoms were overstated, see e.g., PageID 553, 555, but failed to note her extensive medication list, including Zoloft, Lyrica, Flexeril, Naproxen, Vicodin, and Valium, PageID 463. Boston v. Astrue, 2011 WL 4914759, at *9, 2011 U.S. Dist. Lexis 119580, at *26 (S.D. Ohio Sept. 15, 2011) (finding [t]hat the ALJs failure to address this evidence [of Plaintiffs medicine regime], and properly evaluate Plaintiffs fibromyalgia, prevent the Court from engaging in meaningful review of the ALJs decision). While the ALJ, on the one hand, faults Plaintiff for not receiving more treatment; she, on the other, points to Plaintiffs ability to attend doctors appointments as evidence that she is able to work. Compare PageID 553 with PageID 561. It is unclear how Plaintiffs ability to attend periodic doctors appointments equates to an ability to engage in sustained employment. Barnhorst v. Commr of Soc. Sec., 1:10-cv-526, 2011 WL 3811462, at *18, 2011 U.S. Dist. LEXIS 96079, 2011 WL 3811462, at *53 (S.D. Ohio Aug. 5, 2011) (An ALJ must build an accurate and logical bridge between the evidence and the result). More egregious is that the ALJs proposition pits Plaintiff against a double-edged sword: she is condemned when she seeks treatment and condemned when she does not. While credibility determinations regarding subjective complaints rest with the ALJ, those determinations must be reasonable and supported by substantial evidence. Rogers, 486 F.3d at 249. This is not the case in this instance.
Based on all the foregoing, the ALJs non-disability finding is unsupported by substantial evidence and must be reversed. See Blakley, 581 F.3d at 409-10 (holding that the Commissioner must follow his [or her] own procedural regulations in crediting medical opinions).
IV.
When, as here, the ALJs non-disability determination is unsupported by substantial evidence, the Court must determine whether to reverse and remand the matter for rehearing or to reverse and order the award of benefits. The Court has authority to affirm, modify or reverse the Commissioners decision with or without remanding the cause for rehearing. 42 U.S.C. § 405(g) ; Melkonyan v. Sullivan , 501 U.S. 89, 100, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). Generally, benefits may be awarded immediately only if all essential factual issues have been resolved and the record adequately establishes a plaintiffs entitlement to benefits. Faucher v. Secy of Health & Human Servs. , 17 F.3d 171, 176 (6th Cir. 1994) ; see also Abbott v. Sullivan , 905 F.2d 918, 927 (6th Cir. 1990) ; Varley v. Secy of Health & Human Servs. , 820 F.2d 777, 782 (6th Cir. 1987). In this case, evidence of disability is overwhelming. Three treating physicians opined that Plaintiff has work-preclusive limitations, and evidence to the contrary -- i.e. , the opinions of record reviewing physicians -- is weak.
The undersigned also notes the unusual circumstances of this appeal: three unsound ALJ decisions, all of which included reversable error in the analysis of the same treating physician. Given these circumstances and the strong, uncontroverted evidence of record in support of a finding of disability, there is no just reason to further delay this matter for even more administrative procedures. See Gentry v. Commr of Soc. Sec. , 741 F.3d 708, 730 (6th Cir. 2014) (remanding for benefits after two remands and three administrative hearings); see also Benecke v. Barnhart , 379 F.3d 587, 595 (9th Cir. 2004) (Allowing the Commissioner to decide the issue again would create an unfair heads we win; tails, lets play again system of disability benefits adjudication); Randall v. Sullivan , 956 F.2d 105, 109 (5th Cir. 1992) (Because of the medical record, we think it unconscionable to remand this eight-year-old case to the Secretary for further review).
V.
For the foregoing reasons, IT IS ORDERED THAT : (1) the Commissioners non-disability finding is unsupported by substantial evidence, and REVERSED ; (2) this matter is REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for an immediate award of benefits; and (3) this case is TERMINATED on the docket.
IT IS SO ORDERED.
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID number.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requires a good deal of walking or standing, or ... sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 416.967(b). An individual who can perform light work is presumed also able to perform sedentary work. Id. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. 20 C.F.R. § 416.967(a).
The undersigned also notes that the ALJ made this same error in discounting the opinion of Dr. Danopulos. PageID 549-50.
Whereas mild and moderate functional limitations are generally considered non-disabling, see Sims v. Commr of Soc. Sec., 406 F. Appx 977, 980 (6th Cir. 2011), marked and extreme limitations are suggestive of disability. See 20 C.F.R. Pt. 416, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan , 942 F.2d 301, 307 (6th Cir. 1991).
This Court found that the ALJ erred in the same manner in Masters v. Commr of Soc. Sec. , No. 3:17-cv-354, 382 F.Supp.3d 726, 2019 WL 1529198 (S.D. Ohio April 9, 2019), making this instance of disregard for a District Court Remand Order the second one in just a month.