Jeffrey Deaner v. Comm'r of Soc. Sec. ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0711n.06
Case No. 20-5113
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Dec 21, 2020
DEBORAH S. HUNT, Clerk
JEFFREY DEANER, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF KENTUCKY
)
COMMISSIONER OF SOCIAL SECURITY, )
) OPINION
Defendant-Appellee. )
BEFORE: COLE, Chief Judge; McKEAGUE and WHITE, Circuit Judges.
COLE, Chief Judge. Jeffrey Deaner appeals a district court decision affirming the Social
Security Administration’s denial of supplemental security income and disability insurance
benefits. Deaner contends that the administrative law judge (“ALJ”) erred at two points in the
five-step analysis: at the second-step determination of severe impairments and the third-step
determination of per se disabilities. Because the ALJ’s determinations were supported by
substantial evidence, we affirm the judgment of the district court.
I. BACKGROUND
Deaner filed for disability insurance benefits and supplemental security income benefits,
claiming disability due to seizures, vertigo, panic attacks, back problems, agoraphobia, migraines,
high-blood pressure, short-term memory problems, dyslexia, learning disabilities, and tingling,
numbness, and swelling in his feet. The ALJ evaluated Deaner’s disability claim pursuant to the
Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
five-step process promulgated by the Commissioner of Social Security. See 20 C.F.R. § 404.1520.
At the first step of the process, the ALJ found that Deaner had not engaged in substantial gainful
activity since the alleged onset date. At the second step, the ALJ found that Deaner has the
following severe impairments: lumbar spine degenerative disc disease, seizure disorder,
hypertension, vertigo, inflammatory bowel disorder, obesity, hepatic steatosis, migraines, anxiety
disorder, depression, attention deficit hyperactivity disorder, and below-average intellectual
functioning.
In reaching his second-step conclusions, the ALJ discounted the one-time diagnoses made
by the Commissioner’s consultative examiner, Marcy Walpert, M.A., LPP. Ms. Walpert
conducted a clinical interview with Deaner and a mental status examination that revealed a full-
scale IQ of 44. Ms. Walpert diagnosed Deaner with moderate to severe neurocognitive disorder,
moderate intellectual disability, learning disorder in reading, panic disorder with agoraphobia, and
severe social anxiety. Two state agency psychological consultants, Dr. Bornstein and Dr. Prout,
considered Ms. Walpert’s findings and found them unpersuasive and inconsistent with the
evidence in the record from other providers. The ALJ agreed and found that Ms. Walpert’s
diagnoses amounted only to non-severe impairments.
At step three, the ALJ determined that Deaner did not have an impairment that meets or
medically equals any of the enumerated impairments that the Social Security Administration
categorizes as per se disabilities.
Before proceeding to steps four and five, the ALJ assessed Deaner’s residual functional
capacity (“RFC”). The ALJ considered the record as a whole, including all severe and non-severe
impairments, when developing the RFC. The ALJ extensively discussed Ms. Walpert’s
consultative examination. Based on all of Deaner’s impairments and symptoms, the ALJ
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determined that Deaner could perform a range of light work. The RFC included a series of
limitations, finding that Deaner could not operate a motor vehicle, work around dangerous
machinery, or at unprotected heights. The ALJ further found that Deaner could carry out only
simple instructions and only occasionally interact with the public.
At step four, based on Deaner’s RFC and the testimony of a vocational expert, the ALJ
found that Deaner was unable to perform any of his prior jobs.
At step five, the ALJ considered Deaner’s age, education, experience, and residual
functional capacity and determined that there were a significant number of jobs in the national
economy that he would be capable of performing. As a result, the ALJ found that Deaner was not
disabled under the Social Security Act.
Deaner appealed the ALJ’s decision to the agency’s Appeals Council, then the district
court. The district court affirmed the agency’s decision, and this appeal followed.
II. ANALYSIS
A. Standard of Review
In Social Security cases, this court reviews district court decisions de novo. Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007). In turn, we must affirm an ALJ’s conclusions unless
the ALJ “failed to apply the correct legal standards or has made findings of fact unsupported by
substantial evidence in the record.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.
2004) (quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997)). Substantial
evidence is evidence that “a reasonable mind might accept as adequate to support a conclusion.”
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. of N.Y. v. NLRB,
305 U.S. 197, 229 (1938)). This standard does not permit the reviewing court to “resolve conflicts
in evidence, or decide questions of credibility.” Bass, 499 F.3d at 509. So long as substantial
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evidence supports the ALJ’s decision, this court will not reverse the ALJ’s determination “even if
there is substantial evidence in the record that would have supported an opposite conclusion.”
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997)).
B. Legal Framework for Evaluating Disability Claims
To receive disability benefits, a claimant must be “disabled,” as defined by the Social
Security Act. The Act defines “disability” as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(3)(3)(A).
Agency regulations set forth a five-part test that ALJs must follow to determine whether a
claimant is disabled under the Act. 20 C.F.R. § 404.1520. This court has summarized the five-
step analysis as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment must be
severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is suffering from a severe
impairment that has lasted or is expected to last for a continuous period of at least
twelve months, and his impairment meets or equals a listed impairment, claimant
is presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his past relevant work,
he is not disabled.
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5. Even if claimant’s impairment does prevent him from doing his past relevant
work, if other work exists in the national economy that accommodates his residual
functional capacity and vocational factors (age, education, skills, etc.), he is not
disabled.
Walters, 127 F.3d at 529.
The claimant bears the burden of production at steps one through four. At step five,
the burden shifts to the Commissioner to prove that the claimant can perform other work
in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(2).
C. The ALJ’s Step Two Finding of Severe Impairments
1. Substantial Evidence
A severe impairment is an impairment “which significantly limits [the claimant’s] physical
or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). A claimant bears the
burden of proving that an impairment is severe. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)
(per curiam).
The ALJ found that Deaner had numerous severe mental impairments: anxiety disorder,
depression, attention deficit hyperactivity disorder, and below-average intellectual functioning.
Deaner contends that the ALJ should have found the following additional severe impairments:
moderate intellectual disability, moderate to severe neurocognitive disorder, learning disorder in
reading, and panic disorder with agoraphobia.
Although the consultative examiner, Ms. Walpert, made one-time diagnoses of the four
impairments that Deaner contends should have been designated severe, the ALJ determined that
these diagnoses were not persuasive and fully recorded the reasons for that conclusion. For one,
Ms. Walpert did not review any of Deaner’s records and her diagnoses were based on a one-time
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examination. Deaner’s mental status examinations in the record were “frequently normal.” And
despite Deaner’s claims of severe anxiety, the record showed he attended appointments with
medical providers frequently, maintained rapport, and was described as pleasant and cooperative.
Second, Ms. Walpert did not provide a rationale for the neurocognitive disorder and intellectual
disability diagnoses given Deaner’s history in semi-skilled jobs, such as a janitor and security
guard. Third, the ALJ found that Deaner did not exhibit the signs of the severe incapacities that
would typically be associated with an IQ of 44. Finally, two state agency psychological
consultants found Ms. Walpert’s findings to be unpersuasive and inconsistent with other evidence
in the record.
Deaner ultimately argues that the ALJ should have given more weight to Ms. Walpert’s
diagnoses. However, we may not second-guess the weight the ALJ gave the evidence nor his
credibility determinations. See Bass, 499 F.3d at 509. Because the ALJ’s designation of severe
impairments was supported by substantial evidence, our inquiry on step two ends.
2. Harmless Error
Even if the ALJ’s finding were not supported by substantial evidence, any error would be
harmless. The step-two finding of a severe impairment is a threshold inquiry. See 20 C.F.R.
§ 404.1523(c). So long as the ALJ finds at least one severe impairment and analyzes all
impairments in the following steps, the characterization of other impairments as severe or non-
severe is “legally irrelevant.” Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008). Here,
the ALJ found multiple severe impairments and properly considered all impairments in the
following steps. Therefore, the district court correctly decided that any possible error in
categorizing impairments would be harmless.
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D. The ALJ’s Step Three Finding of No Per Se Disability
Deaner challenges the ALJ’s determination at step three that he did not meet or medically
equal Impairment Listings 12.05 (intellectual disorder) and 12.06 (anxiety). 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Listing 12.05, 12.06. If the claimant meets a listed impairment (or its medical
equivalent), the claimant will be found disabled per se and the ALJ will not proceed with the
remaining steps. 20 C.F.R. § 404.1520(a)(4)(iii); Turner v. Comm’r of Soc. Sec., 381 F. App’x
488, 491 (6th Cir. 2010). The Listing of Impairments catalogs impairments that the agency
considers “severe enough to prevent an individual from doing any gainful activity, regardless of
his or her age, education, or work experience.” 20 C.F.R. § 404.1525(a).
A claimant must satisfy all the medical criteria of the listing to be deemed disabled in step
three. Alternatively, a claimant may prove that her impairment is “at least equal in severity and
duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). In either case, the
claimant bears the burden of offering evidence to establish each element of the listing. Foster v.
Halter, 279 F.3d 348, 354 (6th Cir. 2001).
To demonstrate that he meets or medically equals Impairment Listing 12.05(B), Deaner
must show:
1. an IQ score of 70 or below;
2. “extreme limitation of one, or marked limitation of two, of the following areas”:
a. “understand, remember, or apply information;” or
b. “interact with others;” or
c. “concentrate, persist, or maintain pace;” or
d. “adapt or manage oneself;” and
3. that the disorder began before age 22.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.05.
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To demonstrate that he meets or medically equals Impairment Listing 12.06, Deaner must
show:
1. medical documentation of panic disorder; and
2. “extreme limitation of one, or marked limitation of two, of the following areas”:
a. “understand, remember, or apply information;” or
b. “interact with others;” or
c. “concentrate, persist, or maintain pace;” or
d. “adapt or manage oneself.”
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.06.
The “extreme” or “marked” limitation requirement is the same in Impairment Listing 12.05
and 12.06. In the case of both listings, the ALJ found that Deaner was not per se disabled because
he did not meet his burden of proving an extreme or marked limitation in any of the four listed
areas.
An extreme limitation means the claimant is “not able to function in this area
independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, Section 12.00(F)(2)(e). A marked limitation means the claimant’s functioning is
“seriously limited.” Id. at (F)(2)(d). The ALJ found that Deaner had only a moderate limitation
in each of the four categories, which means his functioning was “fair.” Id. at (F)(2)(c).
First, substantial evidence supports the ALJ’s finding that Deaner has only a moderate
limitation in understanding, remembering, or applying information. The ALJ notes that during a
2014 mental status examination, Deaner was able to remember two of three objects after ten
minutes, repeat two sets of three digits forward and two sets of two digits backwards, name two of
the three most recent presidents, and remember other historical facts. The ALJ discounted Ms.
Walpert’s 2018 consultative examination in which Deaner could not remember any presidents or
recall any information during testing as inconsistent with the record. Deaner argues that it was
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error to rely on a 2014 examination while discounting Ms. Walpert’s diagnoses in 2018 because
his condition deteriorated since 2014. Deaner points to general evidence that neurocognitive
disorders might be expected to worsen. But the ALJ reasonably found nothing in the record to
indicate a “significant exacerbation in mental impairment or decline in mental functioning to
justify the difference in presentations at the different consultative examinations.” Although
Deaner suggests that the ALJ should have given more weight to the recent consultative
examination, the ALJ reasonably weighed the evidence to find a moderate limitation.
Second, substantial evidence supports the ALJ’s determination that Deaner has only a
moderate limitation in interacting with others. The ALJ explained that Deaner reported talking to
family two to three days a week and spending time with friends. Deaner reported that he did not
get along well with authority figures, but also said he never lost a job for failing to get along with
others. Deaner argues that the ALJ ignored his panic disorder with agoraphobia diagnosis, which
would indicate more substantial limitations in interacting with others. But the ALJ noted the
diagnosis, reasonably found that it was not severe, and made a determination about Deaner’s
capacity to interact with others based on substantial evidence of Deaner’s interactions with friends,
family, and doctors in the record.
Third, substantial evidence supports the ALJ’s finding that Deaner has only a moderate
limitation in concentrating, persisting, or maintaining pace. The ALJ pointed to a mental
examination which showed that Deaner’s concentration and attention were age-appropriate, but
that he had some memory impairment. The examination showed that Deaner’s fund of knowledge
was within the normal limits. The ALJ also considered Deaner’s testimony that he could only pay
attention for a few minutes and does not handle stress well. Deaner argues that the ALJ should
have relied on Ms. Walpert’s findings, his girlfriend’s report, and his hallucinations. But the ALJ’s
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decision not to do so was reasonable and within his discretion to weigh the evidence and make
credibility determinations. An ALJ need not cite every piece of evidence in the record and “an
ALJ’s failure to cite specific evidence does not indicate it was not considered.” Daniels v. Comm’r
of Soc. Sec., 152 F. App’x 485, 489 (6th Cir. 2005) (quoting Simons v. Barnhart, 114 F. App’x
727, 733 (6th Cir. 2004)).
Fourth, substantial evidence supports the ALJ’s finding that Deaner has only a moderate
limitation in adapting or managing himself. While Deaner claimed that he needed reminders to
groom himself and claimed to be unable to stand to perform household tasks and get from the car
to the house, the ALJ found that this testimony was inconsistent with Deaner’s prior statements
and medical records. The ALJ noted that in a consultative examination Deaner said he was able
to perform basic chores with help from family and in another consultative exam he said he was
able to groom himself independently. The ALJ also found that the medical records and physical
examination did not support an inability to stand. Deaner had not mentioned this issue to any
medical providers before. The ALJ thus reasonably determined that, on the whole, Deaner’s
limitations in adapting or managing himself were only moderate.
Because Deaner bears the burden of proving every element of Listing 12.05 and failed to
meet his burden under 12.05(B)(2), he cannot prevail even if he shows that he meets (B)(1) and
(B)(3). His arguments under both elements are therefore unavailing. The district court’s
determination that Deaner failed to prove that his mental impairment began before age 22 is not
relevant insofar as the district court properly determined that the ALJ had substantial evidence to
dispose of the issue at (B)(2). And the ALJ’s decision to discount Deaner’s IQ score is not error
because an ALJ is not required to accept an IQ score that is inconsistent with the record. Baker v.
Comm’r of Soc. Sec., 21 F. App’x 313, 315 (6th Cir. 2001). Nor did the ALJ run afoul of agency
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guidelines in doing so. The agency’s program operations manual states that information about the
claimant’s “daily activities and current behavior” are “required” to determine the severity of an
intellectual disability. POMS: DI 24515.055. This is consistent with the introduction to the section
on mental disorder listings which states that an ALJ will presume the IQ score is accurate “unless
evidence in the record suggests otherwise.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00(H)(2)(d).
Therefore, the ALJ was permitted to discount the IQ score under agency regulations and this
circuit’s case law.
III. CONCLUSION
The administrative record contains substantial evidence to support the Commissioner’s
conclusion that Deaner is not disabled within the meaning of the Social Security Act. We therefore
affirm the judgment of the district court.
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HELENE N. WHITE, Circuit Judge, dissenting.
I would reverse the judgment of the district court on the bases that the ALJ’s determination
that Deaner’s diagnosis of panic disorder with agoraphobia was a non-severe impairment was not
supported by substantial evidence; the failure to recognize Deaner’s panic disorder with
agoraphobia as a severe impairment was not harmless error; and the ALJ’s determination that
Deaner’s condition did not meet or medically equal Impairment Listing 12.06 (anxiety), 20 C.F.R.
Pt. 404, Subpt. P, App. 1, Listing 12.05, 12.06, was not supported by substantial evidence.
I.
The record shows that the ALJ’s failure to designate Deaner’s panic disorder with
agoraphobia as severe was not supported by substantial evidence. As an initial note, the ALJ’s
order stated, “the claimant has the non-severe impairments of moderate intellectual disability,
moderate to severe neurocognitive disorder, learning disorder in reading, and panic disorder with
agoraphobia.” R. 8-2, PID 51. But immediately following that statement the ALJ opines that these
were “one-time diagnoses,” that were “wholly inconsistent with the other evidence of record.” Id.
Thus, it is apparent that the ALJ did not find that Deaner’s moderate intellectual disability,
moderate to severe neurocognitive disorder, learning disorder in reading, and panic disorder with
agoraphobia were non-severe conditions; rather the ALJ determined that the diagnoses were
incorrect, or at least not supported in the record, and therefore did not credit Deaner with having
the relevant diagnoses at all.1
Admittedly the record varies somewhat with respect to most of these diagnoses, and the
ALJ’s dismissal of some of the diagnoses was not without support. That cannot be said for the
1
This conclusion is also supported by a comparison of the diagnoses the ALJ deemed severe with the diagnoses the
ALJ deemed non-severe. It would be illogical to find that anxiety disorder is a severe impairment, but panic disorder
with agoraphobia, a more significant form of anxiety, is not. The same goes for finding Deaner’s “below-average
intellectual functioning” is severe, but “moderate intellectual disability” is non-severe.
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diagnosis of panic disorder with agoraphobia, however. The ALJ’s decision to dismiss Deaner’s
agoraphobia diagnosis was contrary to clear and consistent evidence in the record, and therefore
was not supported by substantial evidence. The ALJ disregarded all three of Deaner’s consultative
examinations, in their entirety, based on a finding that they were “inconsistent with the record.”
But the consultative examiner’s reports were quite consistent, despite being conducted years apart
and by different examiners hired by the state. Susan Lear, Psy.D., examined Deaner in April 2014,
and noted in her analysis of Deaner’s “current specific manifestations of [] mental disorder,” that
he reported tending to “isolate himself from others,” as well as being “fearful of social situations.”
R.8-8, PID 1009. Jodi Bauer, MA, LPP, examined Deaner in October 2017, and noted that one of
Deaner’s chief complaints was “problems being in crowds.” Id. at PID 995. Bauer also noted that
Deaner reported panic attacks “2 times a week triggered by being in social settings.” Id. at PID
997. Bauer reviewed Deaner’s provider records and found that Deaner had been diagnosed with
panic disorder, and that there were reports of agoraphobia in his medical records. Bauer’s
diagnostic impression was that Deaner was experiencing generalized anxiety disorder “with panic
attacks.” Id. at PID 1000. Marcy Walpert, M.A., LPP, examined Deaner in May 2018. Walpert
noted that Deaner reported “a lot of anxiety and panic feelings several times per week,” and
diagnosed Deaner with “panic disorder with agoraphobia.” Id. at PID 892, 896. Although the
consultative examiner’s evaluations of Deaner’s panic attacks and anxiety became more severe
over time, that is consistent with Deaner’s medical record, and it was therefore unreasonable for
the ALJ to dismiss these reports as inconsistent with the records. At least as concerns Deaner’s
panic disorder, the examiner’s reports appear quite consistent with the records.
Deaner’s mental-health provider’s notes from September 2015 state that he considers
himself a loner and has “trouble wanting friends.” R. 8-7, PID 716. In December 2015, the same
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provider notes that Deaner reported that he did not want to be around people and just wanted to
“go home, shut the door and not talk to anyone.” Id. at PID 721. The February 2016 notes state
that Deaner was reporting isolating himself often, and that Deaner is afraid to go to the dentist and
had actually hit the dentist at one point because he got “so worked up.” Id. at PID 729. Records
from a September 2016 appointment stated that Deaner reported that he stays in his house and does
not go anywhere and that he experiences panic attacks about once a week.
In August 2017, Deaner was admitted to a psychiatric hospital due to suicidal ideation. His
psychiatric therapist, Angela Puckett, APRN, who the same day referred Deaner to the emergency
room, noted in her assessment of Deaner that he reported “increased isolation” and said he “just
stays in the bedroom.” Id. at PID 509. Puckett also stated “[a]goraphobia noted- panic attacks
reported.” Id. The assessment noted that Deaner “has been isolating self in room since admission,”
and noted Deaner’s report that he does not like being around people and that people make him
nervous. Id. at PID 487. The record from his admission also notes “panic disorder” as one of his
diagnoses. Id. at PID 489. Deaner’s discharge summary included the following note in his plan
of care: “Goal: Refrain from isolation” and “Outcome: Not Progressing.” Id. at PID 507. In
follow-up visits, Puckett noted that Deaner did not “want to get out of the house,” reported having
“ongoing panic attacks,” and stated that “he has a lot of fear upon leaving his room that something
bad is going to happen.” Id. at PID 752. On a subsequent visit, Puckett noted that Deaner was
continuing to have panic attacks, reported feeling like he “was going to die” when he went into a
Walmart, and said that his “agoraphobia continues.” Id. at PID 766. In a later visit, in February
2018, Puckett noted that Deaner reported being “unable to go out in public anymore” due to anxiety
and that “he will ‘freak out.’” Id. at PID 774. Based on the above, the ALJ’s determination that
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Deaner’s panic attack with agoraphobia was a “one-time diagnosis” by consultative examiner
Walpert is not supported by substantial evidence.
The ALJ deferred to the findings of the state psychological consultants in dismissing
Deaner’s diagnosis of panic disorder with agoraphobia. The ALJ explained that he found “the
assessments of the State agency medical consultants and State agency psychological consultants
to be the most persuasive opinions in the record. The consultants are policy experts, and they
provided a detailed narrative to support their assessments.” R. 8-2, PID 64. To begin, I disagree
with this characterization. The state agency psychological consultants did not provide a detailed
narrative to support their assessments. Dr. Prout stated that the consultative examiner’s findings
were “less persuasive” because the claimants “performance at the [consultative examination] is
very questionable,” and said there were “multiple contacts with other providers that do not note
deficits which would have [been] very clear if the results were valid.” R. 8-3, PID 182. Although
not entirely clear, this may have been more of a concern with the examiner’s diagnosis of
intellectual disability than with the panic-disorder diagnosis. In the end, Dr. Prout found that each
of the consultative examiners’ opinions were “an overestimate of the severity of the individual’s
restrictions/limitations,” and that Deaner had the ability to work with some limitations. Id. Dr.
Prout provided no independent assessment or analysis of Deaner’s social anxiety, frequently
reported panic attacks, or tendency to isolate himself from others Dr. Bornstein copied Dr. Prout’s
assessment verbatim.
According to the recently amended regulations, ALJs “are not required to adopt any prior
administrative medical findings, but they must consider this evidence according to §§ 404.1520b,
404.1520c, and 404.1527, as appropriate, because our Federal or State agency medical or
psychological consultants are highly qualified and experts in Social Security disability evaluation.”
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20 C.F.R. § 404.1513(a). Because the ALJ found the evidence in the record inconsistent, the ALJ
was required to “consider the relevant evidence and see if [he could] determine whether [Deaner
is] disabled based on the evidence” available. 20 C.F.R. § 404.1520b. For claims filed on or after
March 27, 2017, the ALJ is not required to “defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion” and in considering the persuasiveness of any particular
medical opinion or finding in the record, the ALJ is instructed to primarily consider the
supportability and consistency of the opinion(s) from each source. 20 C.F.R. § 404.1520c. In
assessing supportability, “[t]he more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or her medical opinion(s) . . . the
more persuasive the medical opinions . . . will be. 20 C.F.R. § 404.1520c(c)(1). As to consistency,
“[t]he more consistent a medical opinion . . . is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.”
20 C.F.R. § 404.1520c(c)(2). An ALJ may also consider the source’s relationship with the
claimant, including the length of the treatment relationship, the frequency of examinations, the
purpose of the treatment relationship, the extent of the treatment relationship, and whether the
medical source examined the claimant or merely reviewed evidence in the claimant’s file; whether
the medical opinion is offered by a specialist; and other factors such as the source’s familiarity
with other evidence in the claim or understanding of the disability program policies, though
analysis of these factors is not required. See 20 C.F.R. § 404.1520c(c)(3)–(5).
Contrary to the requirements of the regulations, the ALJ did not properly consider the
persuasiveness of the varying pieces of evidence in the record under the framework laid out by
Section 404.1520. The ALJ did not clearly analyze the supportability and consistency of the state
consultants’ assessments, as compared to other evidence in the record which supported Deaner’s
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claims, nor did he analyze the evidence under any of the other discretionary factors an ALJ may
use to assess conflicting evidence.
The ALJ did note that Walpert’s diagnoses were not persuasive in part because she based
her assessment on a one-time assessment and did not review Deaner’s medical records. This could
arguably be construed as an assessment of supportability and given that the state consultants did
review the relevant medical records it was not unreasonable for the ALJ to find that, on the whole,
the state consultant’s evaluations relied on more supportable evidence than Walpert’s diagnosis.
But as to the diagnosis of panic disorder with agoraphobia specifically, the state consultants never
explicitly analyzed the issue or explained what evidence they relied on in finding that the diagnosis
was unsupported by the record, and the ALJ did not discuss or acknowledge this deficiency. Thus,
to the extent that the ALJ’s comparison of the evidence reviewed by Walpert and the state
consultants was an analysis of supportability, the analysis was insufficient to find that Walpert’s
diagnosis of panic disorder with agoraphobia was less persuasive than the state consultants’
contrary findings.
More importantly, the ALJ failed to consider the other pieces of evidence in the record that
conflicted with the state consultants’ conclusions and did not explain why the state consultants’
conclusions were more persuasive than that evidence. In particular, the ALJ did not acknowledge
the state consultants’ finding that Deaner did not suffer from panic disorder with agoraphobia
conflicted with the diagnoses of his psychiatric therapist, which were clearly documented on
numerous occasions in the record. Nor did the ALJ provide any explanation for why the
evaluations of the state consultants were more supportable or consistent than the diagnoses of
Deaner’s therapist, such that the psychiatric records should be disregarded. And a basic
comparison of the psychiatric records and the state consultants’ reports, provides no support for
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Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
the conclusion that the consultants’ reports were more supportable or consistent than Deaner’s
psychiatric records.
As to supportability, the evidence and explanations provided by Deaner’s psychiatric
therapist for the diagnoses of panic disorder and agoraphobia were extensive and well-supported,
in contrast to the state consultants’ reports, which essentially ignored the issue altogether. As to
consistency, Deaner’s mental-health records which document many appointments of the course of
several years are remarkably consistent in their findings and notations of worsening social anxiety
and panic related to leaving home and being around others, and are also consistent with Walpert’s
report and the reports provided by prior consultative examiners.
The ALJ pointed out notations of normal mental status and normal eye contact by non-
mental-health providers noted in checklists on Deaner’s medical charts, perhaps to imply that the
state consultants’ finding that Deaner did not suffer from panic disorder with agoraphobia was
consistent with medical records. But these records were from providers that are not mental-health
professionals and were treating Deaner for unrelated medical problems. Thus, it was not
reasonable for the ALJ to accord these form chart notations more weight than the consistent
diagnoses and detailed observations of the medical professionals responsible for Deaner’s mental-
health care, which the ALJ essentially ignored in his analysis. See 20 C.F.R. § 404.1520c(c)(4)
(“The medical opinion or prior administrative medical finding of a medical source who has
received advanced education and training to become a specialist may be more persuasive about
medical issues related to his or her area of specialty than the medical opinion or prior
administrative medical finding of a medical source who is not a specialist in the relevant area of
specialty.”). Moreover although Deaner was repeatedly diagnosed with agoraphobia, and his panic
attacks upon leaving home and being in public were consistently reported throughout the record,
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Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
it is worth noting that all of his mental-health examiners and therapists, including the consultative
examiners, observed that he was pleasant and cooperative, and that he maintained rapport, and
yet frequently included diagnoses of panic disorder and agoraphobia in their records.
Thus, descriptions of Deaner from non-mental-health medical providers as presenting with a
normal or pleasant affect, or maintaining eye contact, do not conflict with the observations of
providers who nonetheless diagnosed Deaner with agoraphobia and panic disorder.
The ALJ also made much of the fact that Deaner attended frequent medical appointments,
seemingly implying that Deaner could not have agoraphobia or panic upon leaving the home if he
was able to attend the appointments. But a thorough review of Deaner’s medical charts reveals
that Deaner often reported extreme and unmanageable pain that required medication and treatment.
It is unreasonable to hold Deaner’s attendance at doctor’s offices against him for the purpose of
evaluating his agoraphobia diagnosis.
Based on the foregoing, it is clear that Deaner’s psychiatric therapist’s diagnosis of panic
disorder, as well as Walpert’s diagnosis of panic disorder with agoraphobia, were consistent with
each other and the majority of the record, and that the state consultants’ evaluations, which failed
to acknowledge Deaner’s social anxiety, panic attacks, and isolation in its evaluation of his
impairments, was inconsistent with the relevant evidence in the record, and not supportable.
In sum, the ALJ’s determination that Deaner did not have a severe diagnosis of panic
disorder with agoraphobia was not supported by substantial evidence. The ALJ came to this
conclusion based on substantial deference to the state consultants’ evaluations, which barely
addressed Deaner’s allegations of anxiety, panic disorder, and agoraphobia, rather than the
consistent and well-supported diagnoses of panic disorder and agoraphobia in the records of
Deaner’s treating psychiatric therapist, which was echoed by the diagnosis provided by the
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Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
consultative examiner. This analysis was contrary to the regulations, which instruct ALJ’s to
evaluate the persuasiveness of conflicting medical opinions in the record based primarily on
supportability and consistency, and to provide an articulation of that analysis in their opinions.
The ALJ did not articulate the applications of these factors to the relevant evidence, and an
independent evaluation of the supportability and consistency of the competing evidence
demonstrates that the decision to accord controlling weight to the state consultants was improper.
I. Harmless Error Analysis
The ALJ’s failure to accept Deaner’s panic disorder with agoraphobia diagnosis was not
harmless error. Although the ALJ stated that he considered all severe and non-severe impairments
in his assessments, as noted above, it is clear that the ALJ did not merely dismiss the severity of
Deaner’s panic disorder with agoraphobia diagnosis; he found that the diagnosis itself was not
supported. Thus, it is not reasonable to accept that the ALJ went on to consider this diagnosis in
his subsequent findings.
II. The ALJ’s Step Three Finding of No Per Se Disability
The ALJ’s determination that Deaner did not meet or medically equal Impairment Listing
12.06 (anxiety) was not supported by substantial evidence. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
12.06. A finding under Impairment Listing 12.06 requires:
A. Medical documentation of the requirements of paragraph 1, 2, or 3:
1. Anxiety disorder, characterized by three or more of the following;
a. Restlessness;
b. Easily fatigued;
c. Difficulty concentrating;
d. Irritability;
e. Muscle tension; or
f. Sleep disturbance.
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Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
2. Panic disorder or agoraphobia, characterized by one or both:
a. Panic attacks followed by a persistent concern or worry about additional panic attacks
or their consequences; or
b. Disproportionate fear or anxiety about at least two different situations (for example,
using public transportation, being in a crowd, being in a line, being outside of your home,
being in open spaces).
3. Obsessive-compulsive disorder, characterized by one or both:
a. Involuntary, time-consuming preoccupation with intrusive, unwanted thoughts; or
b. Repetitive behaviors aimed at reducing anxiety.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental
functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is “serious and persistent;” that is, you have
a medically documented history of the existence of the disorder over a period of at least 2
years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured
setting(s) that is ongoing and that diminishes the symptoms and signs of your mental
disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your
environment or to demands that are not already part of your daily life (see 12.00G2c).
Id. As noted previously, there is medical documentation in the record of both panic disorder and
agoraphobia. Deaner clearly presented medical documentation sufficient to satisfy paragraph
A(2). Deaner’s medical documentation included numerous notations, across several years,
indicating his fear of going out in public, including notations that he could not go to the dentist for
fear of anxiety attacks, and had panic attacks when going in stores such as Walmart, and was afraid
to leave the house. Thus, although the ALJ did not specifically address this fact in his opinion,
Part A is clearly met. As for Part B, the ALJ’s determination that Deaner does not meet the criteria
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Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
of Part B was not supported by substantial evidence, and was likely driven, at least in part, by the
fact that the ALJ failed to accept Deaner’s well-documented medical history of panic disorder and
agoraphobia.
To start, the ALJ’s conclusion that Deaner has only a moderate limitation in interacting
with others is not supported by substantial evidence. A finding of moderate limitation is
appropriate where the claimant’s “functioning in th[e] area independently, appropriately,
effectively, and on a sustained basis is fair.” 20 C.F.R. Part 404, Subpt. P, App. 1,
§ 12.00(c)(6)(F)(2). In support of his finding of moderate limitation, the ALJ cited a 2014
consultative examination in which Deaner said he socialized with friends, a report of talking to
friends and family, and Deaner’s statement that he has never lost a job due to problems getting
along with people. The ALJ’s reliance on evidence from 2014 and prior is unreasonable where
Deaner has not been employed since 2014 and his mental-health records show that his agoraphobia
and social anxiety developed and significantly worsened between 2015 and 2018. Deaner’s
mental-health provider’s notes from September 2015 report that Deaner considers himself a loner
and has “trouble wanting friends.” R. 8-7, PID 716. The December 2015 notes state that Deaner
reported that he did not want to be around people and just wanted to “go home, shut the door and
not talk to anyone.” Id. at PID 721. The February 2016 notes state that Deaner reported isolating
himself often and being afraid to go to the dentist, and that he had actually hit the dentist at one
point because he got “so worked up.” Id. at PID 729. Notes from a September 2016 appointment
stated that Deaner reported that he stays in his house and does not go anywhere and that he
experiences panic attacks about once a week. Deaner’s December 2016 provider notes state that
he doesn’t want to go out of the house, that he reports ongoing panic attacks, and that he has “a lot
of fear upon leaving his room that something bad is going to happen.” Id. at PID 752. In August
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Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
2017, his provider notes “increased isolation,” and makes notations of “agoraphobia” and “panic
attacks.” Id. at PID 759. That month Deaner was hospitalized due to increasing depression and
anxiety with suicidal ideation, and his hospital records state that he “isolated self in room since
admission,” and that at discharge he had not progressed in refraining from isolation. Id. at PID
504–07. The record for October 2017 notes that Deaner’s agoraphobia is continuing and that he
had a panic attack last time he went to Walmart. And, finally, the February 2018 notes state that
Deaner reported inability to go out in public due to anxiety because he will “freak out.” Id. at PID
775.
The foregoing records clearly show a progressive worsening of Deaner’s condition
between 2015 and 2018. Thus, it was unreasonable for the ALJ to base his assessment of Deaner’s
condition on Deaner’s reported socialization in 2014, without recognition of Deaner’s clear
decline. Deaner’s mental-health records paint a consistent picture of a worsening case of
agoraphobia that severely impacted his ability to socialize or even leave his home in many
instances and caused frequent panic attacks. Thus, the record did not contain sufficient evidence
from which the ALJ could reasonably conclude that Deaner had only moderate limitations in
interactions with others. The records are clear that by 2018, Deaner was far more limited, and thus
a finding of at least marked limitation, defined as “functioning in this area independently,
appropriately, effectively, and on a sustained basis is seriously limited,” was warranted. 20 C.F.R.
Part 404, Subpt. P, App. 1, § 12.00(c)(6)(F)(2).
As to the ALJ’s determination that Deaner has only a moderate limitation in adapting or
managing himself, I would once again find that this is not supported by substantial evidence. The
record is consistent in showing that Deaner’s ability to “regulate emotions, control behavior, and
maintain well-being in a work setting” including “adapting to changes,” “managing
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Case No. 20-5113, Deaner v. Comm’r of Soc. Sec.
psychologically based symptoms,” and “making plans [] independently of others,” is severely
impaired. See 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(c)(6)(E)(4). Consistent mental-health
assessments throughout the entire record, including from an in-patient behavioral health unit, a
treating psychiatric therapist, and a neurologist show: that Deaner suffers from audiovisual
hallucinations in which he reports seeing people who are not there; that he is unable to leave his
home other than for doctor’s appointments due to panic attacks; that he does not manage bills,
cook or clean for himself; that his girlfriend manages his medications; and that he needs reminders
to attend to basic personal hygiene. Even if the ALJ dismissed all of the consultative examinations
in the record, there is no basis in any mental-health or neurological assessment from the last several
years that would support a finding that Deaner’s ability to control and regulate his psychological
state is not significantly impaired. Thus, this finding is not supported by substantial evidence.
Deaner’s ability to adapt and manage is at least a marked limitation and may be an extreme
limitation.
Given that two of the ALJ’s findings of mere moderate limitation were not supported by
substantial evidence and substantial evidence supports finding at least marked limitation in both
areas, Deaner met the criteria of at least two marked limitations under category B. Therefore, the
ALJ should have found that Deaner has a per se disability and granted Deaner supplemental
security income and disability insurance benefits under the regulations.
For the foregoing reasons, I respectfully dissent.
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