NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0603n.06 No. 10-5446

UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT CHRISTY L. B OULIS-GASCHE, P laintif f-App ellant.

v. COMMISSIONER OF SOCIAL SECURITY, Defendan t-Appellee. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE EASTE RN DISTRICT OF TENNESSE E

BEFORE: CLAY and S TRANCH, Circ uit Jud ges, and BARRETT , District Judge. * CLAY, Circuit Judge. Plaintiff Christy L

. Boulis-Ga she appea ls the district court’s g rant of summary judgme nt to the Commi ssioner of the Social Security Administration in this action challeng ing the Social Security Administration’s denial of Plaintiff’s application for social secur ity disability benef

its. For the rea sons discussed below, the judgme nt o f t h e d istrict court is REVERSED in part , the decision of the Social Security Administration VACATED in part , and the case REMAND ED to the Social Security Administration for further proce eding s consistent with this opini on.

H o n o r a b l e M i c h a e l R

. B a r r e t t , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e S o u t h e r n D i s t r i c t o f O h i o , s i t t i n g b y * d e s i g n a t i o n .No. 10-5446 BACK GR OUND I n this appeal, Plaintiff cha lleng es only the denial of

disability benef its on account of he r alleg ed mental disability

from Aug ust 27, 2001 to Dece mber 31, 2005. Our discussion of the backg round of this ca se is limit ed ac cording ly

. I. F actual Background I n Aug ust of 2001, Plaintiff Christy L

. Boulis-Ga sche was involved in a workplac e acc ident when a stack of box es fell on her neck and head. (CAR at 593.) Plaintiff soug ht immediate medical 1

trea tment, but was discharg ed fr om the emer g ency room with no signific ant finding of injury

. On September 14, 2001, Plaintiff visited Dr. Paul E. Hoffma nn, M.D., with complaints of neck pain on her left side. Ba sed on an examination, Dr. Hoffma nn diag nosed her with “my o fa s ci al pain sy ndrome,” which he believed to be cause d by the work-r elated injury

. ( Id. at 594.) I n 2002, an MRI

reve aled a tumor on the left side of Plaintiff’s brain, and as a res u l t, Plaintiff underw ent a

cra niotomy

. (

Id. ) Plaintiff was also diag nosed with a seizure disorder, and trea ted for that condition by Dr. Miche lle Br ewe r, M.D., a ne urolog ist. ( Id .) On Dec ember 18, 2002, afte r a neurolog ical examination, Dr. Br ewe r rec orded that Plaintiff “may have panic attacks,” ( id. at 487), and on April 9 , 2 0 0 3, that she had “panic attacks.” ( Id. at 485.) I n a note dated J anuar y 7, 2004, Dr. Eug enio Var g as, the surg eon who remove d t h e brain
tumor in 2002, examined Plaintiff for seizures, slurred speec h, and extreme anxiety and worry . ( Id. at 493-94.)

Citations t o “CAR” re fer

to the Certified Administrative Rec ord filed on a ppeal. 1 2No. 10-5446

On J une 2 2 , 2004, Plaintiff saw Dr. Hoffma nn, who presc ribed Pax il to Plaintiff to assist with sleep problems, noting that Dr. Br ewe r previously had done the same. ( Id. at 524.) On September 1, 2004, Dr. Br ewe r diag nosed Plaintiff with panic attacks. ( Id. at 467-72.) Then, on September 24, 2004, Plaintiff saw Dr. Thomas E. Davis, M.D., a colleag ue of Dr. Hoffma nn, who noted Plaintiff’s complain t s o f fatig ue, which she “believe s is also possibly rela ted to her seizure medications and possible eff

ects of depre ssion, for which she is being trea ted by Pax il.” ( Id

. at 519; see also id. at 521 (fur ther noting “patient’ s depre ssion”).) On J anuar

y 14, 2005, Plaintiff complained of anxiety and depre ssion to Dr. Hoffma nn, who presc ribed Cy

mbalta. ( Id. at 517.) F ollowing a

n April 4, 2005 appointment, Dr. Hof fmann noted that Plaintiff “has been tried on sever al differ ent things for mood, including Cy mbalta and Pax il.” ( Id. at 511-12.) He furth er d o cumented that “she is very depre ssed and her mood is under poor control. She has tried Cy

mbalta and Pax il without g ood relief

. . . . I believe that she had a signific ant amount of anxiety contributing to her curr ent sy mptomology ,” for which he presc ribed Z oloft. ( Id. ) On May 9, 2005, Plaintiff repor ted to Dr. Hoffma

nn th at t he Z oloft “made her more depre ssed and made her fee l more in the dumps,” and Dr. Hoffma nn observe d that “[s] he seems to be still very depre ssed.” (

Id. at 507.) Dr. Hoffma

nn provided Plaintiff with samples of L exapro, and added that if Plaintiff’s mood did not improve , he may consider a ref err al to D r. Steve Sanders for evalua tion. (

Id. at 507-08.) On J une 15, 2005, Plaintiff complained to There sa Thay er, a nurse in Dr. Br ewe r’s prac tice, of mental slowness, nervousness, and shakiness, and indicated that the shakiness might be rela ted
to her seizure condition. ( Id. at 619.) On J une 20, 2005, Dr. Hoffma nn noted that “L exapro has been

3No. 10-5446

working better for her[;] she has not r eally had any side eff ects with this medication, and ha s been fee ling better.” (

Id. at 5 0 3 -0 6). Dr. Hoffma nn doubled her dosag e of L exapro “to help decr ease some of the a

nx iety she is having .” (

Id. at 503.) On August 1 5 , 2 0 0 5 , Dr

. Hoffma nn noted t hat P laintiff’s “mood may be som e better with L exapro,” but noted that Plaintiff “is having some anxiety ” for which he would refer h er to Dr. Sanders. (

Id. at 610.) At that time, Dr. Hoffma nn opined that Plaintiff’s phy sical impairment would not allow her to tolerate even low work stress, noting that “depr ession” contr ibuted to the sever ity of Plaintiff’s sy

mptoms and functional limitations . ( Id. at 557-64.) On Octobe r 5, 2005, Plaintiff saw Dr . Br ewe r, who noted tha t Plaintiff had rec ently seen a psy chiatrist. (

Id. at 617.) Dr. Br ewe r noted that Plaintiff “has been added another antidepre ssant and is on L exapro and dox epin but does fee l g ood on the medication. She has had trouble tolerating antidepre ssants in the past.” ( Id. ) Dr

. Br ewe r observe d a “depr essed aff ect,” ( id. at 617), and

rec ommended continued psy chiatric car e, as well as the addition of the medication “Vistaril to [be] use[d] twice daily for nervousne ss and nausea as well as dizz iness.” ( Id. at 618 (noting that Xana x would be pre scribed if

Vistaril proved ine ffe ctive).) On October 10, 2005, Plaintiff saw Dr. Hoffma nn who ref

err ed to his rec eipt of a note from Dr. Sanders, in which Dr. Sanders rec ommended an incre ased dosag e of L exapro. ( Id. at 606-07.) I n response to this note—which is not in the rec ord—Dr. Hoffma nn incre ased Plaintiff’s dosag e of L exapro and indica ted that he would like to re fer her “ back to Dr . Sanders f or her mood.” (

Id. )

4No. 10-5446

II. P roce dural Hi story On November 23, 2003, Plaintiff filed an application for social secur ity disability insurance benef its with the Social Security Administration (the “Administration”) pursuant to Title I I and Part A of Title XVI I I of the Social Security Act (“A ct”)

. The Administration denied her claim on April 30, 2004, concluding that Plaintiff was “not disabled unde r our rules.” ( Id. at 51.) On Aug ust 23, 2006, an administrative law judge (“A L J ”) conducte d a hear ing in which Plaintiff te stified. ( Id. at 43, 46-50.) On J anuar

y 26, 2007, the AL J deter

mined that Plaintiff failed to show that she was disabled

on acc ount of either a

phy sical or mental impairment dur ing tha t time. As to mental impairment,

2 the AL J conclude d that Plaintiff’s “re ported panic disorder is not a medically deter mina ble i m p ai rm ent, and her situational anxiety /depre ssion does not meet the 12-month durational require ment.” (

Id. at 27.) The AL J explained: At the hear ing, the claimant testified that she had panic attacks two to thr ee times a month. However , there is nothing in the clinica l or trea tment notes to indicate that [P laintiff] soug ht formal mental health trea t m ent for repor ted panic attacks. Treatment notes indicate that Dr. Hoffma n [si c] presc ribed psy chotropic medication in April 2005 for repor

ted situational anxiety

/depre ssion, but that, with use o f t h e medication, her

mood was improved by

J une 2005.

Be cause Plaint i ff limit s her appea l to the denial of her disability claim based on mental 2 impairment, we do not consider the denial of her disability claim based on phy sical impairment. For purposes of backg round and context, howeve r, we briefly summarize the AL J ’s trea tment of Plaintiff ’s al l eg ed phy sical impairments. The AL J conclude d that the combination of Plaintiff’s alleg ed phy sical impairments, namely “my ofasc ial pain sy ndrome; bilatera l car

pal tunnel sy

ndrome; [and] possible seizu re disorder,” would constitute a “‘se vere impairment.’” The AL J nonetheless found that Plaintiff was not disabled within the meaning of the Act, beca use, on step four, the AL J conclude d t h at P laintiff could perf orm a “full rang e of medium work,” which would include the activities requir ed of he r prior e mploy ment as a c omputer-a ided dra fter.

5No. 10-5446

(CAR at 27 (citing Ex . 23F) .) The A ppeals Council denied r eview on July 15, 2008. On November 4, 2008, Plaintiff timely filed a complaint in the district court ag ainst the Commi ssioner, seeking revie w of the denial of s o cial secur ity disability benef its. Following the cross-f iling of dispositi ve motions, on September 16, 2009, the assig ned mag istrate judge issued a report and rec ommendation (“R& R”), rec ommending that judgme nt be enter ed in favor o f t h e Commi ssioner. Plaintiff filed timely objections to the R&R, which the district court overr uled. On Fe bruar y 2, 2010, the district court e ntere d judgme nt for the Commissioner. Plaintiff appea ls. DISCUSSIO N I. Legal Stand ards We beg in with the leg al stand ard g overning social secur ity disability benef its, and then discuss the scope of our revie w of the denial of benef its. An individual is entitled to benef its under the Social Security Act if the individual is disabled. See, e.g. , 42 U.S.C. §§ 421(a) (1), 1382(a)

. The Act define s “disability ” as the “inability to eng ag e in any substantial g ainful activity by rea son of any medically deter

minable phy sical or mental impairment which can be expected to r esult in de ath or which has lasted or can be expected to la st f or a continuous period of not le ss tha n 12 months.” 42 U.S.C. § 423(d)( 1)(A)

. The reg ulations at 20 C.F.R. § 1520 set forth a five-ste p sequential analy sis to determine w hether

an individual is disabled, which we have summar ized as follows: First, the claimant mus t demonstrate that he ha s n o t engag ed in substantial g ainful activity during the period of d i s ab i l i t y . Second, the claimant must show that he suffe rs from a sever e medically deter minable phy sical or mental impairment. Third, if the claimant s h o ws that his impairment meets or medically equals one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, he is d ee m ed d i s abled. Four th, the AL J d eter

mines whether , based on the claimant' s residual functional capa city , the claimant can perf orm his past rele vant work, in which case the claimant is not disabled. Fifth, the AL J deter mines whether , based on the claimant’s residual 6No. 10-5446

functional capa city , as well as his ag e, education, and work experience , the claimant can ma ke an a djustment to ot her w ork, in which c ase the claimant is not disabled. W ilson v. Comm’r of Soc. Sec

. , 378 F.3d 541, 548 ( 6th Cir. 2004). Specifica lly , with reg ard to ste p two, the Act define s a “phy sical or mental impairment” as “an impair

ment that results from a

natomical, phy siologica l, or psy cholog ical abnormalities which

are demonstrable by medically acc eptable clinical and labora tory diag nostic techniques.” 42 U.S.C. § 423(d)( 3). The reg ulations f urther state that the impairment “ must ha ve lasted or be expected to last for a continuous period of a t least 12 months.” 20 C.F.R. § 404.1509. An unsucc essful cla imant may appea l the denial of disability benef its to t he district cour

t. We revie w de novo the decis i o n of t he dis trict court. See W hite v. C omm’r of Soc. Sec. , 572 F.3d 272, 281 (6th Cir. 2009). “The Commi ssioner’s conclusion will be aff irmed absent a deter

mination that the AL J failed to apply the cor re ct l eg al standard or made fac t finding s unsupported by substantial evidenc e in the rec ord.” Kyle v. Comm’r of Soc. Sec. , 609 F.3d 847, 854 (6th Cir. 2010);

see also 42 U. S

. C

. § 405(g ). Even if this Court would decide the matter differ ently , the Commi ssioner’s decision will be aff irmed if s u p p o rt ed by substantial evidenc e. See Lindsl ey v. Comm’r of Soc. Sec. , 560 F.3d 601, 604-08 (6th Cir. 2009). Substantial evidenc e is “such rele vant evidenc e as a rea so nable mind might acc ept as adequate to support a conclusion.” Id. at 604 (interna l quotation marks and citations omitted); see also McG lothin v. Comm’r of Soc. Sec ., 299 F. App’x 516, 521 (6th Cir. 2008) (stating that substantial evidenc e is “more than a scintilla of evidenc e but less than a pre pondera nce” ) (inter

nal quotation marks and c itation omit ted).

7No. 10-5446

II. Analysis As explained below, we conclude that the decision of the AL J as to mental impairment is not supported by

substantial evidence . The c ase sha ll therefor e be r emande d to the Administration. A. Sub stantial Evid ence The AL J made two finding s as to Plaintiff’s alleg ed mental impairments: first, that Plaintiff's claimed panic disorder “is not a medically deter minable impairment;” and s ec o n d , t hat Plaintiff's “situational anxiety

/depre ssion does not meet the 12-month durational require ment” of the Act. We conclude that neither of

these finding s is supported by substantial evidence

. 1. P anic Disorder The AL J conclude d that Plaintiff’s “re ported panic disorder is not a medically deter minable impairment,” rea soning as follows: “At the hear ing, the claimant testified that she had panic attacks
two to three times a month. Howeve r, there is nothing in the clinical or trea tment notes to indicate that the claimant soug ht formal mental health trea tment for repor ted panic attacks.” (

Id. at 27.) The AL J ’s rea soning is flawe d for t wo rea sons, which toge ther deprive the AL J ’s conclusion of a substantial evidentiary

basis. First, the AL J ’s conclusory statement that Plaintiff did not “seek for mal medical tre atment for he r panic attacks” is contrar y to the medical documentation in the rec ord. A re port dated A pril 9, 2003 from Dr. Br ewe r states that Plaintiff “ has panic attacks,” ( id

. at 485), and on September 1, 2004, Dr. Br ewe r ref

ere nces a diag nosis of “panic attacks” (or possible panic attacks, depending on one’s interpretation of the m edica l rec ord). ( Id. at 467.) Plaintiff’s medical re co rd s also note her

8No. 10-5446

fre quent doctor visits with complaints of anxiety , a psy cholog ical condition tha t ma y overla p with panic disorde r. Second, the AL J err ed in discounting Plaintiff’s claimed mental impairment solely beca use she failed to seek formal t rea tment. We have held that a claiman t ’s fa i l u re to seek formal m ental health trea tment is “har dly probative” of whether the clai m an t suffe rs from a mental impairment, Burton v. Apfel , 208 F.3d 212 (6th Cir. 2000) (table) , and “‘should not be a deter minative fac tor in

a cre dibilit y assess m ent’” rela ting to the exis tence of a mental impairment. Strong v. Soc. Sec. Admin. , 88 F. App’x 841, 846 (6th Cir. 2004) (quoting Blankenship v. Bowen , 874 F.2d 1116, 1124 (6th Cir. 1989) (“[I ]t is a questionable prac tice to chastise one wit h a m ental impairment for the exercise of

poor judg ment in seeking reha bilitation”)). 2. Depre ssion/ Anxiety The AL J additiona ll y c o n c lu d e d th a t Pl a in ti ff’ s “situational anxiety

/depre ssion does not meet the 12-month durationa l re q u i re ment” of the Act. The AL J proper ly rec og nized that under the reg ulations, an impairment “must have lasted or be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 404.1509. I n finding that the requirement was not satisfied i n this case , the AL J rea soned as follows in its entirety : “[t] rea tment no t es i n dicate that Dr. Hoffma n [si c] presc ribed psy chotropic medication in April 2005 for reported situational anxiety /depre ssion, but that, with use of the medication, her mood was improved by J une 2005.” ( Id. (citing Ex

. 23F) .) This
trunca ted rea soning overlooks evidenc e in the rec ord, and is not supported by substantial evidenc e. The AL J sel ec t ed “A pril 2005” as the commence ment date of the 12-month beca use Dr. Hoffma nn’s “tre atment notes indicate [t hat he] presc ribed psy chotropic medication in April 2005

9No. 10-5446

for repor ted situational anxiety

/depre ssion.” A start date of April of 2 0 0 5, howeve r, cannot be

sus t ai n ed based on a fair rea ding of the rec ord. As ear ly as September 24, 2004, trea tment notes from Dr. Davis sug g ested that Plaintiff was being trea ted for depre ssion with Pax il. ( Id. at 519-21.) On J anuar y 5, 2005, Plaintiff complained of anxiety and depre ssion to D r . H o f fmann, who presc ribed Cy mbalta. ( Id. at 517.) I n presc ribing Z oloft on April 4, 2005, the start date selec ted by the AL J , Dr. Hoffma

nn specific ally repor

ted that Plaintiff “has tried Cy mbalta and Pax il without g ood relief .” ( Id. at 511-12.) Fur thermore , the AL J ’s selec tion o f “J u n e 2 005” as the end date of the 12 month period, beca use Plaintiff’s “mood was improved,” is without a sound basis. I n support of this asser tion, the AL J provides an unexplained citation to 55-pag e exhibi t, but presumably relied on the only two pag es of that exhibi t that perta in to J une of 2005. ( Id. at 502-04.) Those two pag es contain a repor t by Dr. Hoffma

nn rela ting to a J une 20, 2005 visit by Plaintiff, and state in rele vant part: “On her last visit, we . . . had place d her on L exapro. The L exapro has been working better for her, she has not

rea lly had any side eff

ects with this medication, and has been fee ling better.” ( Id. at 503.) Nowher e does this repor

t state that Plaintiff’s “mood was improved.” Ra t her, when rea d in context of the entire repor

t, and in light of Plaintiff’s previous str u ggle with the side eff ects of psy chotropic medications, Dr. Hoffma

nn’s statement that Plaintiff was fee ling “better ” plainly rela tes to her past experience with side eff

ects of psy chotropic me dications. Even if Dr. Hoffma

nn’s use of the word “better ” ref err ed to Plaintiff’s mood, this word did
not provide the AL J with substantial evidenc e from which to find that Plaintiff’s mental impairment had subsided. The AL J made no inquiry into the deg ree of improvement, o r fr om what baseline

10No. 10-5446

Plaintiff had improved. Under the AL J ’s logic , any improvement in one’s mood, reg ardle ss of how small and from what level the individual improved, would defe at a claim of mental impairment. This cannot be so. By concluding that some unspecifie d improvement in Plaintiff’s mood cure d any anxiety or depre ssion that Plaintiff was experiencing , “the AL J impermissibly substitut e[ed] his own judgme nt for that of a phy sician.” McCain v. Dir., Office of W orkers Comp. Programs , 58 F. App’x 184, 193 (6th Cir. 2003). The AL J ’s conclusion appea rs to be g rounded in a my opic rea di n g o f t h e rec ord combined with a flawe d view of mental illness. See Schmidt v. Sullivan , 914 F.2d 117, 118 (7th Cir. 1990) (noting that judge s, including AL J s in social secur ity case s, must resist the “temptation to play doctor” ). Contrary to the AL J ’s conclusion, it appea rs t hat P laintiff m ay have continued t o suffe r from mental illness afte r J une of 2005. For instance, during an appointment in Aug ust 15, 2005, Dr. Hoffma nn noted that Plaintiff’s “mood may be some better,” but nonetheless noted the prese nce of anxiety and decide d to ref er Plaintiff to another doctor for an evalua tion in that reg ard. ( Id. at 610.) The AL J does not eve n acknow ledg e this evidenc e.

3. Summ ary Acc ording ly , beca

use the decision of the AL J reg arding mental impairment is not supported by substantial evidenc e, that portion of the AL J ’s decision is vacated, and the case rema nded to the AL J for f urther pr ocee dings c onsistent with thi s opinion. 3

Our finding of a lack of substantial evidenc e is reinfor ced by the AL J ’s failure to ref ere nce 3 or otherwise explain the weig ht g iven to the medical opinions in the rec ord about Plaintiff’s alleg ed mental impairment, as require d by 20 C.F.R. § 1527(d)( 2). See Blakley v. Comm’r of Soc. Sec. , 581 F.3d 399, 407 (6th Cir. 2009) (holding that AL J ’s failure to adequa tely discuss medical opinions in the rec ord “denote s a lack of substantial evidenc e”) (interna l quotation marks and citation omitted). 11No. 10-5446 B. Instructions on Rem and On rema nd , t h e AL J shall consider the entirety of the medical evidenc e in the rec ord to determ i n e wh et h er Plaintiff was disabled during the rele vant period on acc ount of a mental impairment. Should the AL J find that the rec ord is not sufficie ntly develope d to deter mine whether Plaintiff was disabled during the rele v an t p eriod, the AL J shall develop the rec ord by taking additional evidenc e, which ma y include, for

example, testimony

from a me dical expert. We acknow ledg e Plaintiff’s reque st in her brief that we impose a duty upon the AL J to consult a mental health expert. Plaintiff conce des that neith er t h e Act nor the reg ulations would impose such a duty , but arg ues t hat the dut y is “implied

. . . when the rec ord contains evidenc e of

a mental impairment but lacks a formal assessment of the claimants mental functioning .” (Pl.’s Rep.
at 5.) Plaintiff offe rs no controlling leg al authority to support her arg ument, and for this rea son we cannot c onclude that the A L J brea ched a ny such implied duty

. N othing in this opinion, howeve r, should be construed as preve nting Pl a in ti f f f r o m r e q u e s ti n g the appointment of a mental health expert on rema nd, or the AL J from doing so sua sponte , to assist in the development of an adequa te rec ord upon which the AL J may consider Plaintiff’s application for disability

benef its based on mental impairment.

As discussed above, the rec ord contains rele vant evidenc e fr o m n u m erous phy sicians rela ting to mental impairment. The AL J co m p l et el y ignor ed this evidenc e. At minimum , the AL J was require d—but failed—to “dete rmine how much weig ht is appropr iate [t o these medical source s] by cons i d ering a number of fac tors,” including “the leng th of the trea tment rela tionship and the fre quency of examination, the nature and extent of the trea tment r elationship, supportability of the opinion, consistency of the opinion with the rec ord as a whole, and any specia liz ation of the trea ting phy sician.” Id. Even if the AL J was disinclined to cre dit the trea ting phy sicians’ opinions beca use, for instance, they wer e not sufficie ntly detailed or helpful, the AL J brea ched its obliga tion to so state in the decision. 12No. 10-5446 CONCLUSION Acc ording ly , the decision of t he dis trict court is REVERSED in part , the decisi o n o f t h e Social Security Ad m i n i s t ration VACATED in part , and the case REMAND ED to the Administration for furthe r proc eeding s consistent with this opi nion.

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