Reed v. SSA
Filing
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MEMORANDUM OPINION & ORDER: For reasons herein, the decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; Denying 14 MOTION for Summary Judgment by Margaret Bonita Reed filed by Margaret Bonita Reed; Granting 15 MOTION for Summary Judgment by SSA with supporting memorandum filed by SSA. A Judgment will be entered herewith. Signed by Judge David L. Bunning on 2/6/2014.(CMR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
CIVIL ACTION NO. 13-26-DLB
MARGARET BONITA REED
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
*****************
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record, will affirm the Commissioner’s decision, as it is supported by
substantial evidence.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Margaret Reed filed her current application for Supplemental Security
Income (SSI) payments, alleging disability as of February 15, 2006. (Tr.170-73). Plaintiff’s
claim was denied initially and on reconsideration. (Tr. 110-11). On August 17, 2011,
Administrative Law Judge Jerry Meade conducted an administrative hearing at Plaintiff’s
request. (Tr. 132-35). On October 27, 2011, ALJ Meade ruled that Plaintiff was not entitled
to benefits. (Tr. 76-92). This decision became the final decision of the Commissioner when
the Appeals Council denied review on January 8, 2013. (Tr. 65-70).
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On February 24, 2013, Plaintiff filed the instant action. (Doc. # 1). This matter has
culminated in cross motions for summary judgment, which are now ripe for review. (Docs.
# 14 and 15).
II. DISCUSSION
A.
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Cutlip v. Secretary of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence” is defined as “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. Courts are not to conduct a de novo review, resolve
conflicts in the evidence, or make credibility determinations. See id. Rather, we are to
affirm the Commissioner’s decision, provided it is supported by substantial evidence, even
if we might have decided the case differently. See Her v. Comm’r of Social Security, 203
F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant is still performing substantial gainful activity; Step 2, whether any of
the claimant’s impairments are “severe”; Step 3, whether the impairments meet or equal
a listing in the Listing of Impairments; Step 4, whether the claimant can still perform his past
relevant work; and Step 5, whether significant numbers of other jobs exist in the national
economy which the claimant can perform. As to the last step, the burden of proof shifts
from the claimant to the Commissioner. See Jones v. Comm’r of Social Security, 336 F.3d
469, 474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110
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(6th Cir. 1994).
B.
The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (Tr. 81). At Step 2, the ALJ found Plaintiff’s osteoarthritis,
decreased visual acuity, panic disorder with agoraphobia, unspecified depressive disorder
and personality disorder to be severe impairments within the meaning of the regulations.
(Id.).
At Step 3, the ALJ found that Plaintiff does not have an impairment or combination
of impairments listed in, or medically equal to, an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1. (Tr. 82). In doing so, the ALJ found that Plaintiff’s osteoarthritis
does not meet the requirements of Listing 1.02 (major dysfunction of a joint) because the
treating and examining physician’s reports do not reflect ambulatory deficits. (Id.). The
ALJ also found that Plaintiff’s vision is better than that required by Listing 2.02 (visual
acuity). (Id.). Although the ALJ recognized that Plaintiff suffers from depression, anxiety,
agoraphobia and dependent personality disorder, he ultimately determined that Plaintiff did
not meet the requirements of Listing 12.04 (affective disorders), 12.06 (anxiety related
disorders) or 12.08 (personality disorders). (Tr. 83). In making this determination, the ALJ
noted that Plaintiff manages many activities associated with daily living, interacts
appropriately with family members and medical staff and has no history of decompensation
in work or work- like settings. (Id.)
At Step 4, the ALJ concluded that Plaintiff has the residual functional capacity (RFC)
to perform medium work, except that:
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[S]he can only occasionally climb ladders, ropes and scaffolds; she must
avoid concentrated exposure to irritants such as fumes, odors, dusts and
gases in poorly ventilated areas; and she must be able to wear corrective
lenses at all times. She is able to understand, remember, and carry out
instructions toward performance of simple repetitive tasks. She has a
moderately limited ability to carry out the stress and pressures of day-to-day
employment and to respond appropriately to coworkers and supervisors in
a work setting. Her ability to sustain attention and concentration toward the
performance of simple repetitive tasks is slightly limited.
(Id.). The ALJ did not consider transferability of job skills because the claimant did not
have past relevant work experience. (Tr. 86).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At
Step 5, the ALJ found that there were a significant number of jobs in the national economy
that Plaintiff could perform. (Tr. 86-87). The ALJ based this conclusion on testimony from
a vocational expert (VE), in response to a hypothetical question assuming an individual of
Plaintiff's age, education, work experience, and RFC.1 (Id.). The VE testified that a
hypothetical individual with Plaintiff's vocational profile and RFC could find work at the
medium exertion level as a hand packer (12,500 jobs regionally/228,000 nationally) or
dining room attendant (18,000 regionally/325,000 nationally). (Id.). The VE further opined
that Plaintiff could find work at the light level of exertion as a price marker (7,500
regionally/110,000 nationally) or routing clerk (4,000 regionally/62,000 nationally). (Id.).
At the sedentary level, Plaintiff could obtain work as an inspector (4,000 regionally/75,000
nationally) or sorter (4,500 regionally/48,000 nationally). (Id.). Based on the testimony of
the VE and Plaintiff’s age, education, work experience, and RFC, the ALJ found that
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The ALJ pointed out that Medical Vocational Rule 203.28 would require a finding of
“not disabled” if Plaintiff had the RFC to perform a full range of medium work. (Tr. 86).
However, the ALJ noted that Plaintiff was “impeded by additional limitations,” and incorporated
these limitations into the hypothetical questions posed to the VE. (Id.).
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Plaintiff is capable of making a successful adjustment to other work and thus concluded
that she was not under a "disability," as defined by the Social Security Act. (Tr. 87).
C.
Analysis
Although not treated separately in the briefing, Plaintiff essentially advances two
arguments on appeal. (Doc. # 14). First, Plaintiff claims that the ALJ erred in relying on
“opinions of [ ] non-examining psychologists and an aged report of an examining
psychologist [who] did not have the opportunity to review the entire record,” rather than her
most recent psychological examination. Second, Plaintiff argues that the ALJ should have
incorporated the VE’s response to the second hypothetical question into his Step 5
analysis.
1.
The ALJ did not err in relying on the opinions of non-examining
psychologists, as well as an outdated report from an examining
psychologist, rather than Plaintiff’s most recent psychological
examination.
In social security disability cases, medical evidence may come from treating sources,
non-treating sources and non-examining sources. 20 C.F.R. § 404.1502. A treating source
is the claimant’s “own physician, psychologist, or other acceptable medical source who
provides [claimant], or has provided [claimant], with medical treatment or evaluation and
who has, or has had, an ongoing treatment relationship with [claimant].” Id. A non-treating
source has examined the claimant but does not have an ongoing treatment relationship
with him or her, while a non-examining source is an acceptable medical source who has
not examined the claimant but provided medical or other opinion evidence in the case. Id.
ALJs must give a treating source’s opinion controlling weight “if he finds the opinion
‘well supported by medically acceptable clinical and laboratory diagnostic techniques’ and
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‘not inconsistent with the other substantial evidence in the case record.’” Wilson v. Com’r,
378 F.3d 541, 544 (6th Cir. 2004)(quoting 20 C.F.R. § 404.1527(d)(2)). If the ALJ decides
that the treating source’s opinion is not entitled to controlling weight, the ALJ must consider
the following factors in order to determine how much weight to give the opinion: (1) the
length of the treatment relationship and the frequency of the examination; (2) the nature
and extent of the treatment relationship; (3) supportability of the opinion; (4) consistency
of the opinion with the record as a whole; and (5) the specialization of the treating source.
Id.
One meeting is insufficient to establish an ongoing treatment relationship. Abney
v. Astrue, Civ. A. No. 5:07-394-KKC, 2008 WL 2074011 at *11 (E.D.K.Y. May 13, 2008)
see also Smith v. Com’r, 482 F.3d 783, 876 (6th Cir. 2007)(holding that the opinion of a
doctor, who examined claimant only once and wrote a single “physical capacity evaluation,”
was not entitled to controlling weight).
Similarly, case law suggests that clinical
assessments, made by a variety of medical personnel on multiple occasions, are not
entitled to controlling weight. See Saunders v. Com’r, No. 1:08-cv-1136, 2010 WL 1132286
at *4 (W.D.Mich. March 3, 2010)(rejecting Plaintiff’s argument that ALJ failed to consider
an assessment by her treating clinic because she did not cite any legal authority
establishing a “treating medical clinic rule”); Hollingsworth v. Astrue, No. 1:09-0031, 2010
WL 2901830 at *3 (M.D.T.N. July15, 2010)(finding that the ALJ properly considered clinic
records made by various professionals within the facility, not all of whom were licensed
psychiatrists, as “other source” evidence).
The 20 C.F.R. § 404.1527(d)(2) factors, used to determine how much weight to give
a non-controlling opinion from a treating physician, guide the ALJ in determining how much
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weight to accord a non-treating physician’s opinion. Davenport v. Astrue, No. 3:06-cv-402,
2008 WL 641131 at *6 (S.D.O.H. March 4, 2008). While opinions from non-treating
sources typically receive more weight than opinions from non-examining sources, deviation
from this general approach is not a per se error of law. Norris v. Com’r, 461 Fed. Appx. 433
(6th Cir. 2012). For example, an opinion from a state agency medical consultant may be
entitled to greater weight than examining or treating source opinions. Blakely v. Com’r, 581
F.3d 399, 409 (6th Cir. 2009)(quoting Soc. Sec. Rul. 96-6p, 1996 WL 374180 at *3 (July
2, 1996)). This is particularly so when the consultant’s opinion is based on a review of the
complete case record that “provides more detailed and comprehensive information than
what was available to the individual’s treating source.” Id.
Before considering the merits of this matter, the Court finds it necessary to clarify
a few points relevant to Plaintiff’s argument. The Motion for Summary Judgment obliquely
refers to “recent psychological exams,” “opinions of [] non-examining psychologists” and
“an aged report of an examining psychologist.” Rather than specifying which psychologists’
opinions correspond to these labels, Plaintiff simply adds strings of citations to the
voluminous medical record and leaves the Court to sort it out. After reviewing the expert
opinions cited in Step 4 of the ALJ’s analysis, as well as the chronology of Plaintiff’s
psychological exams, the Court believes that Plaintiff’s argument takes issue with four
sources: (1) Dr. Phillip Pack’s mental RFC assessment of August 3, 2011; (2) Dr. Karen
Grantz’s consultative examination record of May 17, 2008; (3) Dr. Sam Stodghill’s
consultative examination report of September 28, 2010; and (4) a Pathways treatment note
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dated June 9, 2010.2 Specifically, Plaintiff asserts that the ALJ should have given more
weight to Dr. Pack’s examination and less weight to opinions rendered by Dr. Grantz and
Dr. Stodghill. Plaintiff also contends that the ALJ should have considered the Pathways
treatment notes as a whole, rather than selectively considering the cited note.
Both Dr. Pack and Dr. Grantz “opined the claimant would have poor ability or marked
limitation in the abilities to deal with work stress, demonstrate reliability, and relate
predictably.” (Tr. 85, 8F and 33F). However, the ALJ determined that this opinion was
inconsistent with the objective medical findings. (Tr. 85). First, the ALJ noted that Plaintiff
displayed a pleasant and cooperative demeanor throughout her evaluation and showed no
difficulty interacting appropriately with others. (Id.). He then reviewed treatment notes from
Pathways Clinic, Carter County Medical Clinic and Ashland Psychiatry Associates, which
“contained no findings of social deficits in stress tolerance, persistence or pace.” (Id.). The
ALJ also found it relevant to discount Dr. Pack’s opinion because Plaintiff’s representative
referred her to his practice for evaluation. (Id.).
Dr. Stodghill determined that “claimant is able to understand, remember, and carry
out instructions toward performance of simply repetitive tasks; has a moderately limited
2
The ALJ only cites to these four sources in his Step 4 analysis. The record makes clear
that Dr. Pack performed Plaintiff’s “most recent psychological exam.”
The Court believes that Plaintiff refers to Dr. Karen Grantz’s opinion when discussing the
“aged report of an examining psychologist [who] did not have an opportunity to review the entire
record.” Of the three expert opinions cited in the ALJ’s analysis, Dr. Grantz’s report is the
oldest. The report is Exhibit 8F in the administrative record (erroneously labeled as a
Consultative Examination Report from Dr. Jeanne Bennett). (Tr. Index 2 and Tr. 376).
By default, Plaintiff’s discussion of a “non-examining psychologist[‘s]” opinion must refer
to Dr. Stodghill’s report. However, the record demonstrates that Dr. Stodghill did examine
Plaintiff, which qualifies him as an examining psychologist along with Dr. Grantz and Dr. Pack.
See 20 C.F.R. § 404.1502 (Tr. 495).
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ability to carry out the stress and pressures of day-to-day employment and to respond
appropriately to coworkers and supervisors in a work setting; and has a slightly limited
ability to sustain attention and concentration toward the performance of simple repetitive
tasks.” (Tr. 85). The ALJ felt that this less restrictive opinion aligned with the objective
medical findings, such as Plaintiff’s treatment records and general demeanor. Therefore,
the ALJ gave Dr. Stodghill’s opinion great weight in determining mental limitations for
Plaintiff’s RFC. (Tr. 86).
These psychologists qualify as non-treating sources because each examined
Plaintiff once. Accordingly, none of their reports were entitled to controlling weight. The
ALJ, tasked with weighing each opinion according to the 20 C.F.R. § 404.1527(d)(2)
factors, took care to explain how much weight he assigned to each source and why.
Although Dr. Pack’s opinion was most recent, the ALJ did not give it much weight because
it was inconsistent with the record as a whole and had been solicited by Plaintiff’s
representative. Dr. Grantz’s opinion was likewise discounted because it was not supported
by objective medical findings.3 The ALJ gave Dr. Stodghill’s opinion, rendered less than
a year before Dr. Pack’s assessment, more weight because it was consistent with the
objective medical findings. ALJs may give opinions from state agency medical consultants
more weight due to their experience with these types of cases. The Court finds no error
in the ALJ’s treatment of these sources.
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Plaintiff’s Motion for Summary Judgment posits that the ALJ should have given Dr.
Grantz’s opinion less weight. This assertion is counterintuitive for two reasons. First, Dr.
Grantz’s opinion actually accords with Dr. Pack’s opinion, which Plaintiff feels is most accurate.
Second, the ALJ actually did discount Dr. Grantz’s opinion, not necessarily due to its age, but
because it was not supported by the objective medical findings. Therefore, the Court need
consider this half-baked argument no further.
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Plaintiff also argues that the ALJ selectively considered one treatment note, rather
than viewing the notes as a whole and affording them more weight. However, the ALJ’s
Step 4 analysis indicates that he reviewed treatment notes from Pathways Clinic, Carter
County Medical Clinic and Ashland Psychiatry Associates. (Tr. 85). The fact that the ALJ
cited an excerpt from one treatment note as an example does not mean that he selectively
considered them. Therefore, the Court finds no error in the ALJ’s review of Plaintiff’s
treatment notes.
2.
The ALJ did not err in failing to rely upon the VE’s answer to the
second hypothetical question in Step 5 of his analysis.
In posing a hypothetical question to a vocational expert, an ALJ must accurately
describe Plaintiff’s functional limitations. Varley v. Sec’y of Health and Human Servs., 820
F.2d 777, 779. (6th Cir. 1987). However, the ALJ need only incorporate those limitations
he finds to be credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235
(6th Cir. 1993).
At the administrative hearing, the ALJ posed two hypothetical questions to the VE.
In the first question, the hypothetical individual had a moderately limited ability to tolerate
stress, a moderately limited ability to respond to supervision and co-workers and a slightly
limited ability to sustain attention and concentration towards simple, repetitive tasks. (Tr.
105-06). The VE testified that there were numerous jobs in the regional and national
economy that such an individual could perform. (Id.). The ALJ slightly modified this
hypothetical, asking the VE to consider a similar hypothetical individual with a marked
limited ability to tolerate stress and a slightly limited ability to sustain attention and
concentration towards simple repetitive tasks. (Tr. 106-07). This individual would also
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have a marked limitation in ability to respond appropriately to supervision and work
pressures, which would deteriorate as the number of co-workers increased. (Id.). The VE
responded that the jobs cited in the first hypothetical would be eliminated from
consideration and there would be no other unskilled jobs that such a person could perform.
(Tr. 107-08).
Plaintiff argues that the ALJ should have relied on the VE’s response to the second
hypothetical in conducting his Step 5 analysis. However, the propriety of such hypothetical
questions depends upon the ALJ’s RFC finding.
While the limitations in the first
hypothetical reflect Dr. Stodghill’s findings, the second incorporates the discounted opinions
of Dr. Grantz and Dr. Park. As discussed earlier in this opinion, the ALJ properly weighed
these medical sources and determined that Dr. Stodghill’s assessment was entitled to the
most weight. Because the ALJ is only required to include the limitations that he finds
plausible into the hypothetical, the Court finds that he did not err in relying on the VE’s
response to the first hypothetical.
III. CONCLUSION
Accordingly, for the reasons stated,
IT IS ORDERED that the decision of the Commissioner is found to be supported by
substantial evidence and is hereby AFFIRMED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. #
14) is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc.
# 15) is hereby GRANTED.
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A Judgment in favor of Defendant Commissioner will be entered contemporaneously
herewith.
This 6th day of February, 2014.
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