Hay v. SSA
Filing
16
MEMORANDUM OPINION & ORDER, 1) granting 14 MOTION for Summary Judgment by Gregory Hay 2) denying 15 MOTION for Summary Judgment by SSA. Signed by Judge Joseph M. Hood on 5/14/14.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
GREGORY HAY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
0:13-cv-149-JMH
MEMORANDUM OPINION
AND ORDER
***
This
matter
is
before
the
Court
upon
cross-motions
for
Summary Judgment [D.E. 14, 15] on Plaintiff’s appeal of the
Commissioner’s denial of his Title II application for a period
of disability and disability insurance benefits.1 [Tr. 13-22].
The
Court,
sufficiently
having
reviewed
advised,
will
the
grant
record
and
Plaintiff’s
being
otherwise
motion
and
deny
Defendant’s motion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts a five-step analysis:
1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant's medical condition.
1
These are not traditional Rule 56 motions for summary
judgment. Rather, it is a procedural device by which the parties
bring the administrative record before the Court.
2.
An individual who is working but does not have a
"severe" impairment which significantly limits his
physical or mental ability to do basic work activities
is not disabled.
3.
If an individual is not working and has a severe
impairment which "meets the duration requirement and
is listed in appendix 1 or is equal to a listed
impairment(s)", then he is disabled regardless of
other factors.
4.
If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant's residual functional capacity
and the physical and mental demands of the claimant's
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
5.
If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary considers his residual functional capacity,
age, education, and past work experience to see if he
can do other work.
If he cannot, the claimant is
disabled.
Preslar v. Sec'y of Health & Hum. Servs., 14 F.3d 1107, 1110
(6th
Cir.
1994)
(citing
20
C.F.R.
§
404.1520
(1982)).
“The
burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled.” Id.
“If
the analysis reaches the fifth step without a finding that the
claimant
is
Secretary.”
not
disabled,
the
burden
transfers
to
the
Id.
In the instant matter, the ALJ determined that Plaintiff
did
not
engage
in
substantial
gainful
activity
during
the
relevant time period under step one. [Tr. 15]. Under step two,
the
ALJ
found
that
Plaintiff’s
2
medically
determinable
impairments of generalized anxiety disorder, major depressive
disorder, and bipolar disorder were “severe” as defined by the
agency’s
regulations.
[Tr.
15];
20
C.F.R.
§§
404.1520(c),
416.920(c). The ALJ further found that Plaintiff’s back pain and
torn tendon in his left shoulder were “non-severe” impairments.
[Tr. 15].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1.
[Tr.
15-17]. After further review of the record, the ALJ concluded at
step
four
(“RFC”)
to
that
Plaintiff
perform
a
had
full
a
range
residual
of
work
functional
at
all
capacity
exertional
levels. [Tr. 17]. The ALJ further found that Plaintiff had the
following non-exertional limitations: Plaintiff can understand,
remember,
and
carry
out
simple
and
detailed
instructions;
Plaintiff can only work in a low stress job with only occasional
decision making required and only occasional changes in the work
setting; Plaintiff can have no interaction with the public; and
only occasionally interact with co-workers and supervisors. [Tr.
17].
The ALJ found that Plaintiff was unable to perform any of
his past relevant work. [Tr. 20-21]. However, there were jobs in
the national economy that Plaintiff could perform. [Tr. 21-22].
3
Thus, the ALJ determined that Plaintiff is not disabled under
the Social Security Act. [Tr. 22].
II. Standard of Review
In
reviewing
the
ALJ's
decision
to
deny
disability
benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec'y of Health & Hum. Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted).
Instead, judicial review of the
ALJ's decision is limited to an inquiry into whether the ALJ's
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Hum. Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
reasonable
conclusion."
mind
might
accept
as
adequate
to
support
a
Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
Plaintiff was 52 years of age at the alleged disability
onset date [Tr. 21] and has a high school education. [Tr. 32].
Plaintiff has past work experience as a union carpenter and
automobile
detailer.
[Tr.
21].
Plaintiff
filed
a
Title
II
application for a period of disability and disability insurance
4
benefits, alleging disability beginning on September 30, 2010.
[Tr.
13].
The
claims
were
denied
initially
and
upon
reconsideration. [Tr. 13]. Plaintiff requested a hearing with
the ALJ, which took place July 19, 2012. [Tr. 13]. The ALJ
issued
an
unfavorable
decision
denying
disability
insurance
benefits on August 28, 2012. [Tr. 22].
According
cannot
ride
to
or
Plaintiff,
drive
long
he
cannot
distances,
be
around
and
cannot
people,
deal
he
with
situations. [Tr. 148]. Plaintiff claims that he also cannot be
in certain buildings. [Tr. 152]. Plaintiff sometimes forgets to
do things and his comprehension is not good. [Tr. 152]. When
Plaintiff is depressed he tends to sleep [Tr. 151] and when he
has anxiety attacks at his home, he retreats upstairs. [Tr.
153].
Plaintiff
treats
his
impairments
with
Prozac,
Abilify,
Lamictal, Depakote, and Ativan, as well as monthly counseling
sessions. [Tr. 349].
Plaintiff
first
visited
Regional
Psychotherapy
Services,
Inc. for treatment of his mental health impairments. [Tr. 22337].
Plaintiff’s
treatment
with
Regional
Psychotherapy
took
place before Plaintiff alleges he became disabled. On March 19,
2008, Plaintiff was diagnosed with major depression, and anxiety
disorder. [Tr. 235]. Plaintiff was also assessed with extreme
impairment in job performance and marked impairment in physical
health and financial situation. [Tr. 235]. Plaintiff continued
5
treatment
with
Regional
Psychotherapy
through
December
2008,
[Tr. 223], and appeared less anxious and less depressed when
treatment stopped. [Tr. 223].
Plaintiff also treated with Dr. Sandeep Saroch at Unified
Psychiatry. Plaintiff had his initial diagnostic interview on
April 7, 2010. At this time, Plaintiff complained of depressed
mood,
weight
increased
loss,
low
sleep,
energy,
low
psychomotor
concentration,
retardation,
anhedonia,
worthlessness,
hopelessness, and suicidal thoughts. [Tr. 267]. Plaintiff also
complained
of
agoraphobia,
panic
attacks,
and
social
phobia.
[Tr. 268]. Dr. Saroch diagnosed Plaintiff with bipolar disorder,
depressed
mood,
and
social
phobia.
[Tr.
270].
Dr.
Saroch
prescribed Plaintiff Prozac, Lamictal, [Tr. 262], Lunesta [Tr.
263], and Abilify. [Tr. 264]. Plaintiff continued his monthly
counseling sessions with Dr. Saroch through July 2012. See [Tr.
381].
Throughout
treatment,
Dr.
Saroch
routinely
adjusted
Plaintiff’s medication and Plaintiff reported improvement. See,
e.g., [Tr. 282].
Dr.
Saroch
completed
a
mental
capacities
assessment
of
Plaintiff on July 24, 2012. [Tr. 382-84]. Under occupational
adjustments, Dr. Saroch opined that Plaintiff had a poor ability
to
follow
public,
function
work
interact
rules,
with
independently,
relate
to
co-workers,
supervisors,
maintain
6
deal
attention
with
and
deal
work
with
the
stress,
concentration,
and
persist
at
work-like
tasks,
and
a
fair
ability
to
use
judgment. [Tr. 382]. Under performance adjustments, Dr. Saroch
opined that Plaintiff had a poor ability to understand, remember
and carry out complex job instructions, understand, remember and
carry
out
detailed,
but
not
complex
job
instructions,
and
understand, remember and carry out simple job instructions. [Tr.
383]. Under personal-social adjustments, Dr. Saroch opined that
Plaintiff had a poor ability to behave in an emotionally stable
manner, relate predictably in social situations, and demonstrate
reliability, and a fair ability to maintain personal appearance.
[Tr. 383]. Dr. Saroch opined that all of Plaintiff’s diagnoses
and symptoms were “likely to affect future jobs.” [Tr. 384].
Plaintiff
was
examined
by
Dr.
Leigh
Ann
Ford
for
a
consultative examination on February 28, 2012. [Tr. 349-55]. At
the
examination,
Plaintiff
reported
that
he
was
able
to
do
household chores when he was alone, that he avoids leaving home
because crowds make him nervous, and that he rarely visits with
anyone. [Tr. 350]. Dr. Ford noted that Plaintiff’s concentration
and
attention
appeared
to
be
affected
by
anxiety,
that
his
memory capacities appeared normal, his mood appeared depressed
and
pessimistic,
examination,
and
he
had
that
no
suicidal
his
coping
thoughts
skills
on
the
appeared
day
of
to
be
overwhelmed. [Tr. 350]. Dr. Ford also administered the Rey 15Item
Test,
the
Wechsler
Abbreviated
7
Scale
of
Intelligence
(WASI), Kaufmann Test of Educational Achievement, Second Edition
Brief
Form
(KTEA
II),
the
Beck
Depression
Inventory,
Second
Edition (BDI-II), and the Beck Anxiety Inventory (BAI). [Tr.
350].
The Rey 15-Item Test revealed no indication of faking bad
or malingering tendencies. [Tr. 351]. On the WASI, Plaintiff was
average on the vocabulary subtest, average on the block design
subtest, average on the similarities subtest, and average on the
matrix reasoning. Plaintiff’s Full Scale IQ score was 100, which
is
also
average.
[Tr.
351].
On
the
KTEA-II,
Plaintiff
also
scored in the average range. [Tr. 351]. The results of the BDIII indicated that Plaintiff was suffering from severe levels of
depression. [Tr. 351]. The results of the BAI indicated that
Plaintiff
352].
Dr.
was
suffering
Ford
assessed
from
severe
Plaintiff
levels
with
of
anxiety.
generalized
[Tr.
anxiety
disorder with panic attacks and depressive disorder. [Tr. 352].
Based on this testing, Dr. Ford opined that, while Plaintiff
could possibly attain employment, it would be unlikely that he
could sustain full time employment. [Tr. 352].
Dr. Ford also completed a medical assessment of Plaintiff’s
ability to perform work-related activities. Under occupational
adjustments, Dr. Ford opined that Plaintiff had a fair ability
to follow work rules, use judgment, interact with supervisors,
and function independently, and had a poor ability to relate to
8
co-workers, deal with the public, deal with work stress, and
maintain attention/concentration. [Tr. 353]. Under performance
adjustments, Dr. Ford opined that Plaintiff had a good ability
to understand, remember, and carry out detailed, but not complex
job
instructions
and
to
understand,
remember,
and
carry
out
simple job instructions. [Tr. 354]. Further, Dr. Ford opined
that Plaintiff had a fair ability to understand, remember, and
carry out complex job instructions. [Tr. 354]. Finally, Dr. Ford
opined, under personal-social adjustments, that Plaintiff had a
fair ability to maintain personal appearance and behave in an
emotionally
stable
manner,
and
a
poor
ability
to
relate
predictably in social situations and demonstrate reliability.
[Tr. 354].
Vocational
expert
Mr.
Anthony
Michael
testified
at
the
hearing before the ALJ. [Tr. 44-47]. Mr. Michael testified that
a
person
Plaintiff
with
would
an
RFC
not
be
equivalent
able
to
to
the
return
ALJ’s
to
finding
Plaintiff’s
for
past
relevant work. [Tr. 45]. However, Mr. Michael found that there
would
be
jobs
in
the
national
economy
that
someone
with
Plaintiff’s RFC could perform. [Tr. 45]. Mr. Michael found that
a hypothetical person could perform no jobs in the national
economy if the same hypothetical person also had a poor ability
to relate to co-workers, to deal with the public, to deal with
work stress, to maintain attention and concentration, to relate
9
predictably
in
social
situations,
and
to
demonstrate
reliability. [Tr. 46].
Plaintiff claims that on a normal day he showers, takes his
medication,
sometimes
does
laundry
and
dishes,
watches
television, naps, and may help take care of his daughter. [Tr.
147]. Plaintiff is able to take care of all of his personal
grooming and hygiene. [Tr. 148]. Plaintiff is able to cook, [Tr.
149], and drive [Tr. 150]. Plaintiff claims that he does not
participate in any social activities, goes to his mother’s home
once a day, and visits the doctor once a month. [Tr. 151].
IV. Analysis
Plaintiff
appears
to
claims
make
six
there
are
different
four
issues,
arguments
but
within
Plaintiff
those
four
issues. Plaintiff argues: (1) that the ALJ improperly relied on
medical
alleged
evidence
of
disability
inappropriate
weight
treatment
onset
to
records
date;
the
(2)
function
prior
to
that
the
report
Plaintiff’s
ALJ
gave
completed
by
Plaintiff’s wife; (3) that the ALJ failed to properly apply the
treating physician rule; (4) that the ALJ improperly gave little
weight to the opinion of examining physician, Dr. Ford; (5) that
the ALJ improperly gave weight to the opinion of a non-examining
physician;
and
(6)
that
the
ALJ
additional consultative examination.
10
erred
by
not
ordering
an
Defendant responds first by arguing that the ALJ’s opinion
reflects
a
thorough
review
of
Plaintiff’s
medical
treatment,
including medical evidence before and after his alleged onset
date
of
disability.
Second,
Defendant
argues
that
the
RFC
finding was not solely based upon the RFC assessment performed
by
Plaintiff’s
Third,
wife,
Defendant
but
argues
was
based
that
the
upon
ALJ
the
entire
properly
record.
applied
the
treating physician rule because he stated good reasons for not
giving great weight to the opinion of the treating physician.
Next, Defendant argues that the ALJ properly failed to give
weight to the opinion of the examining physician because her
opinion was not supported by the medical evidence of record.
Finally, Defendant argues that the ALJ did not err by failing to
order a consultative examination because it is the burden of
Plaintiff to produce the medical evidence necessary to support
his claim of disability. Each of these issues will be discussed
in turn.
I. The Court does not express an opinion on whether
the ALJ erred by relying on medical evidence prior to
the alleged onset of disability.
Plaintiff
relying
upon
argues
medical
that
the
treatment
ALJ
erred
records
by
prior
referring
to
and
Plaintiff’s
alleged onset of disability. The Court cannot find that the ALJ
solely relied upon the treatment records from years prior to
Plaintiff’s
alleged
date
of
disability.
11
The
ALJ
did
recount
medical evidence provided from as early as 2008. However, based
upon the ALJ’s opinion, it is unclear whether the ALJ used this
medical
evidence
Plaintiff’s
as
a
impairments
comparison
after
the
to
medical
alleged
evidence
of
date
if
onset
or
Plaintiff relied upon the earlier medical evidence to assess
Plaintiff’s RFC. As Plaintiff was working and does not allege
that he was disabled when seeking treatment in 2008, it may be
permissible for the ALJ to use the prior medical records to show
that
Plaintiff’s
condition
had
changed
or
had
not
changed.
However, it would be inappropriate for the ALJ to complete a
current
RFC
based
upon
medical
treatment
at
a
time
when
Plaintiff admits he was not disabled. Because the Court cannot
determine if the ALJ relied upon this medical evidence as a
current
assessment
of
Plaintiff’s
abilities,
and
because
the
Court will remand for different reasons, the Court expresses no
opinion on whether the ALJ erred in this regard.
II. The ALJ did not give inappropriate weight to the
function report completed by Plaintiff’s wife.
Plaintiff argues that the ALJ erred by relying solely on
the
function
report
submitted
by
Plaintiff’s
wife,
a
acceptable medical source, in determining Plaintiff’s RFC.
Information from [a spouse] cannot establish the
existence of a medically determinable impairment.
Instead, there must be evidence from an ‘acceptable
medical source’ for this purpose. However, information
from [a spouse] . . . may provide insight into the
12
non-
severity of the impairment(s) and how it affects the
individual’s ability to function.
SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).
Contrary to Plaintiff’s allegations, the ALJ did not solely
rely on the function report of Plaintiff’s wife to determine
Plaintiff’s RFC. In his discussion of Plaintiff’s RFC, the ALJ
went
through
function
a
report
complaints
of
detailed
of
account
Plaintiff’s
Plaintiff.
[Tr.
of
medical
wife,
17-20].
and
evidence,
the
Thus,
the
the
subjective
ALJ,
in
compliance with the regulations, relied upon the function report
of Plaintiff’s wife to “show the severity of [his] impairment(s)
and
how
it
affects
[his]
ability
to
work.”
20
C.F.R.
§
404.1513(d). This finding is bolstered by the fact that the ALJ
did not cite the third-party function report during a discussion
of
Plaintiff’s
impairments,
but
rather
for
symptoms
of
Plaintiff’s impairments, which impact his ability to work. For
example, the ALJ noted that the function report stated Plaintiff
would frequently stay home, that he had trouble sleeping, and
that he had trouble with his memory. [Tr. 19]. The ALJ did not
err by considering the function report submitted by Plaintiff’s
wife because it is an opinion of an “other source” that the ALJ
may properly consider.
13
III. The ALJ failed to properly apply the treating
physician rule.
Plaintiff argues that the ALJ failed to give good reasons
for giving little weight to the opinion of treating physician,
Dr.
Sandeep
Saroch.
Plaintiff’s
argument
is
two-fold.
First,
Plaintiff argues that the ALJ failed to give adequate weight to
Dr. Saroch as Plaintiff’s treating physician. Second, Plaintiff
argues that the ALJ erred by failing to give adequate weight to
the opinion of Dr. Saroch because Dr. Saroch is a mental health
specialist.
[A]n opinion from a medical source who has
examined a claimant is given more weight than that
from a source who has not performed an examination (a
nonexamining source), and an opinion from a medical
source who regularly treats the claimant (a treating
source) is afforded more weight than that from a
source who has examined the claimant but does not have
an ongoing treatment relationship (a nontreating
source).
Gayheart v. Comm’r of Social Sec., 710 F.3d 365, 375 (6th Cir.
2013) (citations omitted). The Social Security Administration
“generally give[s] more weight to the opinion of a specialist
about medical issues related to his or her area of specialty
than to the opinion of a source who is not a specialist.” 20
C.F.R. § 404.1527(c)(5). “Treating-source opinions must be given
‘controlling weight’ if two conditions are met: (1) the opinion
‘is
well-supported
by
medically
acceptable
clinical
and
laboratory diagnostic techniques’; and (2) the opinion ‘is not
14
inconsistent with the other substantial evidence in the case
record.’” Id. at 376 (quoting 20 C.F.R. § 404.1527(c)(2)).
“The Commissioner is required to provide ‘good reasons’ for
discounting the weight to a treating-source opinion.” Id. at 376
(citing
20
‘supported
C.F.R.
by
the
§
404.1527(c)(2)).
evidence
in
the
“These
case
reasons
record,
and
must
be
must
be
sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.’” Id. (quoting SSR 962p, 1996 WL 374188, at *5 (July 2, 1996)). “[The Court] will
reverse
and
‘substantial
remand
a
evidence
Commissioner,’
when
denial
otherwise
the
ALJ
of
benefits,
supports
fails
to
the
give
even
decision
good
though
of
the
reasons
for
discounting the opinion of the claimant’s treating physician.”
Friend v. Comm’r of Soc. Sec., 374 F. App’x 543, 551 (6th Cir.
2010) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 54346 (6th Cir. 2004)).
Dr. Saroch opined that Plaintiff exhibited a poor ability
to function in almost every category on the mental capacities
assessment. [Tr. 382-84]. When assessing Plaintiff’s ability to
work, Dr. Saroch stated:
Patient has been diagnosed with Bipolar Disorder, most
recent episode mixed, moderate and Social Phobia.
Symptoms include but are not limited to: depressed
mood, low energy, low concentration and attention,
anhedonia,
psychomotor
retardation,
feelings
of
15
worthlessness/hopelessness,
euphoric
mood,
irritability,
racing
thoughts,
distractibility,
pressured
speech,
psychomotor
agitation,
anxiety
attacks alone and in crowds, anticipatory anxiety and
phobic avoidance. Patient experiences poor memory,
forgetfulness, inability to persist at tasks, lack of
frustration
tolerance
and
inability
to
handle
stressful situations. He also has a high harm
avoidance and low persistence along with poor self
directiveness and self transcendence, all of which are
likely to affect future jobs. Patient has experienced
symptoms since his teenage years.
[Tr. 384].
The ALJ provided good reasons for giving little weight to
the opinion of Dr. Saroch. The ALJ provided that there was a
lack of objective findings to support the limitations imposed by
Dr. Saroch, the opinion does not relate to specific findings,
the opinion is not supported by reports which indicate only
outpatient
care,
inconsistent
with
the
opinion
Plaintiff’s
was
vague,
and
self-reported
the
opinion
activities.
is
[Tr.
20].
These reasons, however, were not supported by the evidence
in the case record. The ALJ’s finding that Dr. Saroch’s opinion
was not supported by objective findings is not supported by the
evidence
of
record.
Prior
to
Plaintiff’s
alleged
disability
onset date, Plaintiff was diagnosed with major depression and
anxiety
disorder
at
Regional
Psychotherapy.
[Tr.
235].
An
extreme impairment in job performance and a marked impairment in
physical health and financial situation were also noted. [Tr.
16
235].
Plaintiff
December
2008
treated
for
with
depression
Regional
and
anxiety
Psychotherapy
disorder.
until
Plaintiff
continued his treatment with Dr. Saroch, who assessed Plaintiff
with bipolar disorder and depressed mood, as well as social
phobia. [Tr. 270].
Dr. Laura Ford administered the BDI-II and BAI, which are
used to measure symptoms of depression and anxiety. [Tr. 35152].
This
severe
testing
levels
of
revealed
that
depression
Plaintiff
and
was
anxiety.
experiencing
[Tr.
351-52].
Furthermore, the Rey 15-Item Test, administered by Dr. Ford,
revealed no indication of faking bad or malingering tendencies.
[Tr.
351].
Therefore,
professionals
and
there
objective
were
medical
findings
testing,
in
by
medical
addition
to
Plaintiff’s subjective complaints, to support the limitations
imposed by Dr. Saroch.
The ALJ’s statement that the opinion did not relate to
specific findings was not supported by the evidence. The mental
capacities
assessment
completed
by
Dr.
Saroch
specifically
states the findings that support his opinion. For example, under
the occupational adjustments category, when asked to describe
any limitations and include the medical clinical findings that
support this assessment, Dr. Saroch stated “Patient experiences
low concentration, low attention, low energy, depressed mood,
irritability, anxiety symptoms.” [Tr. 382]. Dr. Saroch included
17
similar findings justifying all of the limitations he opined
affected
Plaintiff.
Therefore,
the
ALJ’s
statement
that
Dr.
Saroch’s opinion was not related to specific findings is not
supported by the evidence.
The ALJ found that Dr. Saroch’s opinion was vague because
“the word ‘poor’ fails to express the claimant’s functioning in
terms
of
reason
specific
is
not
occupational
supported
by
limitations.”
substantial
[Tr.
evidence.
20].
The
This
mental
capacities assessment defines the word “poor” as “ability to
function in this area is seriously limited, but not precluded.”
[Tr.
382].
Plaintiff’s
Thus,
ability
for
to
example,
follow
when
work
checking
rules,
poor
Dr.
under
Saroch
was
indicating that Plaintiff’s ability to follow work rules was
seriously limited, but not precluded. Therefore, the ALJ’s “good
reason” that Dr. Saroch’s opinion was vague is not supported by
the medical evidence.
The
ALJ’s
statement
that
Dr.
Saroch’s
findings
are
inconsistent with Plaintiff’s self-reported activities is not
supported
by
substantial
evidence.
Plaintiff
states
that
his
memory is really bad [Tr. 149], that he does not like to go out
in public [Tr. 151], being around people makes him nervous [Tr.
152], he is claustrophobic [Tr. 152], he cannot be in certain
buildings [Tr. 152], his comprehension is not good [Tr. 152],
that he gets stressed at home and has to retreat upstairs [Tr.
18
153], and he has fears of people staring at him [Tr. 153]. These
statements by Plaintiff fully support Dr. Saroch’s findings and
limitations.
The
ALJ’s
complaints,
and,
statement
to
a
about
degree,
his
Plaintiff’s
ultimate
subjective
finding
of
not
disabled, appears to hinge on Plaintiff’s self-reported ability
to perform daily household functions. In other words, the ALJ’s
decision
appears
physical
to
find
activities
impairments.
he
Plaintiff
that
is
does
because
not
not
Plaintiff
disabled
allege
that
due
he
can
perform
to
mental
cannot
sit,
stand, lift, push, or pull, the factors typically evaluated in
an
application
for
impairment,
because
physically
incapable
disability
Plaintiff
of
benefits
is
due
to
not
alleging
performing
physical
a
that
physical
he
is
activities.
Plaintiff’s physical ability to mow the grass or wash dishes at
home without tremendous effort or pain is not indicative of his
ability to cope with a work environment that may include coworkers, supervisors, small spaces, stressors, and instructions.
Therefore, the ALJ’s reasons for affording little weight to the
opinion of Dr. Saroch are not supported by the evidence in the
case record and the ALJ failed to properly apply the treating
physician rule.
19
IV. The ALJ gave improper
physician, Dr. Leigh Ann Ford.
weight
to
examining
Plaintiff argues that the ALJ erred in not relying on the
opinion from examining physician, Dr. Leigh Ann Ford. “Though
the opinions of examining physicians are not entitled to as
great a weight as those of treating physicians, the ALJ must,
nonetheless, explain the weight given to opinions of examining
sources.” Wilburn v. Astrue, No. 3:10-cv-8, 2010 WL 6052397, at
*6
(E.D.
Tenn.
Sept.
13,
2010)
404.1527(f)(2)(ii), 416.927(f)(2)(ii)).
(citing
20
C.F.R.
§§
“The same factors that
justify placing greater weight on the opinions of a treating
physician are appropriate considerations in determining weight
to be given an examining physician’s views.” Jericol Mining,
Inc. v. Napier, 301 F.3d 703, 710 (6th Cir. 2002).
The ALJ provided numerous reasons to give little weight to
the opinion of Dr. Ford. The ALJ stated that Dr. Ford’s opinion
was
based
upon
Plaintiff’s
subjective
complaints
and
is
inconsistent with the overall medical record. [Tr. 20]. The ALJ
also stated that the medical opinion was vague because it fails
to adequately define the term “poor.” [Tr. 20].
The ALJ’s statement that Dr. Ford’s opinion was based on
Plaintiff’s
subjective
complaints
is
not
supported
by
the
evidence in the record. While Dr. Ford’s report reveals that she
asked
Plaintiff
to
describe
his
20
complaints,
the
report
also
shows that a mental status examination was performed, as were
numerous
objective
medical
tests.
[Tr.
349-50].
Dr.
Ford
administered the Rey 15-Item Test, the WASI, the KTEA II, the
BDI-II, and the BAI. [Tr. 350]. Therefore, while it may have
been partially based on Plaintiff’s subjective complaints, Dr.
Ford’s opinion was based on the results of objective testing.
Additionally, Dr. Ford’s findings are not inconsistent with
the medical evidence. The only evidence in the record after
Plaintiff’s alleged onset date is from Dr. Saroch and Dr. Ford.
A non-examining state agency physician did review Plaintiff’s
medical treatment, but, as is discussed below, the ALJ did not
discuss this report, much less give it weight, and, as Plaintiff
points out, the non-examining state agency physician did not
review
the
Plaintiff’s
complete
work
medical
limitations
record.
are
Dr.
Ford’s
mostly
opinions
supported
by
on
the
treatment from Dr. Saroch, the only additional medical records
available.
Furthermore,
while
not
the
Court
is
aware
the
ultimate finding of disability is reserved to the Commissioner,
Dr. Saroch and Dr. Ford agree that Plaintiff’s impairments and
limitations impact his ability to work.
The ALJ’s statement that the term “poor” is vague is not
supported by the evidence. At the top of the medical assessment
sheet, the term “poor” is defined as “ability to function in
this area is seriously limited but not precluded.” [Tr. 353].
21
Therefore, the term is not vague as it is clearly defined and
indicates that, for the corresponding function, Plaintiff was
seriously limited.
The ALJ erred in his analysis of the examining physician’s
opinion. While the examining physician is not entitled to great
weight, as is a treating physician, the ALJ is still required to
explain the weight given to the examining physician. The ALJ’s
reasons given for providing little weight to the opinion of the
examining physician are completely unsupported by the record.
Thus, the ALJ erred in providing little weight to the opinion of
examining physician, Dr. Ford.
V. The ALJ did not improperly give weight to a nonexamining physician.
Plaintiff
examining
argues
physician,
that
Dr.
the
opinion
Alicia
of
state
Maki,
is
not
agency
supported
nonby
substantial evidence. All evidence from nonexamining sources is
opinion evidence. 20 C.F.R. § 416.927(e). “The opinions of State
agency medical and psychological consultants and other program
physicians and psychologists can be given weight only insofar as
they are supported by evidence in the case record.” SSR 96-6p,
1996
WL
374180,
at
*2
(July
circumstances,
opinions
from
psychological
consultants
and
2,
State
other
22
1996).
“In
agency
program
appropriate
medical
physicians
and
and
psychologists
may
be
entitled
to
greater
weight
than
the
opinions of treating or examining sources.” Id. at *3.
While Plaintiff argues that the opinion of Dr. Maki is not
based upon the substantial medical evidence, the Court cannot
find
any
reference
to
Dr.
Maki’s
opinion
within
the
ALJ’s
decision. Thus, the ALJ did not give weight to the opinion of
Dr. Maki and the ALJ committed no error in this regard.
VI. The ALJ did not err in failing to order Plaintiff
to submit to an additional consultative examination.
Plaintiff argues that, upon finding the opinions of the
examining
physicians
ordered
Plaintiff
contact
the
complete
enough
treating
record,
to
to
rests
inconsistent,
undergo
a
physician.
defined
enable
determination,
were
as
the
ALJ
consultative
“The
burden
evidence
the
Secretary
with
the
claimant.”
have
examination
of
make
or
providing
complete
to
should
and
a
Landsaw
a
detailed
disability
v.
Sec.
of
Health & Hum. Servs., 803 F.2d 211, 214 (6th Cir. 1986) (citing
20 C.F.R. §§ 416.912, 416.913(d)). An ALJ is not required to
order a consultative examination “unless the record establishes
that
such
an
examination
is
necessary
to
enable
the
administrative law judge to make the disability decision.” Id.
(alteration in original) (quoting Turner v. Califano, 563 F.2d
669, 671 (5th Cir. 1977)).
23
The Court does not find that an additional consultative
examination was necessary in this case. The ALJ was presented
with evidence from Plaintiff’s treating physician, an examining
physician, and a non-examining physician. This medical evidence
presented an adequate basis on which the ALJ could make the
disability determination. Furthermore, Plaintiff argues that a
consultative examination should have been ordered based on the
fact that the ALJ discredited the opinions of both examining
physicians because they were inconsistent. A similar argument
has been dismissed by the Sixth Circuit. See Eldridge v. Apfel,
173 F.3d 854, No. 98-5427, 1999 WL 196564, at *3 (6th Cir. Mar.
30, 1999) (dismissing an argument that the ALJ was required to
order a consultative examination after disregarding the report
of a social worker); see also Robinson v. Sullivan, 887 F.2d
1087, No. 89-3110, 1989 WL 119382, at *1 (6th Cir. Oct. 12,
1989) (“While such an examination might have been helpful here,
it
was
not
necessary.
.
.
.”
(alteration
in
original)).
Therefore, it was not error for the ALJ to fail to order an
additional consultative examination.
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [D.E. 14]
be, and the same hereby is, GRANTED;
24
(2)
that the Commissioner’s Motion for Summary Judgment
[D.E. 15] be, and the same hereby is, DENIED.
This the 14th day of May, 2014.
25
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