Lewis v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) Commissioner's decision is AFFIRMED; (2) Pla's 11 FIRST MOTION for Summary Judgment is DENIED; (3) Def's 12 MOTION for Summary Judgment is GRANTED; (4) Judgment will be entered. Signed by Judge David L. Bunning on 03/22/2013.(DAK)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 12-248-DLB
JAMES J. LEWIS
vs.
PLAINTIFF
MEMORANDUM OPINION & ORDER
MICHAEL J. ASTRUE, Commissioner
SOCIAL SECURITY ADMINISTRATION
DEFENDANT
***************************
Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of an administrative decision of the Commissioner of Social Security. The
Court, having reviewed the record and for the reasons set forth herein, will affirm the
Commissioner's decision, as it is supported by substantial evidence.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff James J. Lewis filed an application for supplemental security income and
disability insurance benefits on August 19, 2009, alleging disability as of April 7, 2006. (Tr.
148-152). He claims disability due to panic attacks, anxiety, depression, and right knee
problems. (Tr. 48-51, 166-167). At Plaintiff’s request, an administrative hearing was
conducted on December 21, 2010, by Administrative Law Judge Don C. Paris. (Tr. 40-83).
On February 4, 2011, the ALJ ruled that Plaintiff was not disabled and therefore not entitled
to either benefit. (Tr. 24-39). This decision became the final decision of the Commissioner
when the Appeals Council denied review on June 8, 2012. (Tr. 1-6).
1
On August 3, 2012, Plaintiff filed the instant action. The matter has culminated in
cross-motions for summary judgment, which are now ripe for adjudication. (Docs. # 11,
12).
II.
a.
DISCUSSION
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. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Substantial evidence is defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Heston v. Comm’r of Soc. Sec., 245 F.3d
528, 534 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Courts
are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility
determinations. See Cutlip, 25 F.3d at 286. 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 Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
However, even if supported by substantial evidence, “a decision of the Commissioner will
not be upheld where the SSA fails to follow its own regulations and where that error
prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen
v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
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
2
a listing in the Listing of Impairments; Step 4, whether the claimant can still perform her
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 Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994).
b.
The ALJ’s Determination
At Step 1, the ALJ found that there was no evidence that Plaintiff had engaged in
substantial gainful activity since the alleged onset of his disability. (Tr. 29). At Step 2, the
ALJ found Plaintiff’s morbid obesity, panic disorder, posttraumatic stress disorder, social
phobia, and torn medial meniscus in his right knee 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. (Id.). In doing so, the ALJ found that Plaintiff’s upper and lower
extremity conditions do not meet or equal the requirements of Listing 1.02A (major
dysfunction of one major peripheral weight-bearing joint) because the record indicated no
problems with ambulation. (Id.). The ALJ further found that Plaintiff's mental impairments
do not satisfy 12.06 (anxiety-related disorders) because they do not cause at least two
“marked” limitations or one “marked” limitation and “repeated” episodes of decompensation,
each of extended duration. (Tr. 29-30).
At Step 4, the ALJ concluded that Plaintiff has the residual functional capacity (RFC)
to perform medium work activity with the additional following restrictions:
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occasionally lift and carry [50] pounds, and frequently 25; stand and walk a
total of six hours in an eight hour day; sit a total of six hours in an eight hour
day; no more than frequently climb ramps or stairs; because of his body
habitus, never climb ladders, ropes, or scaffolds; no more than frequently
kneel or crouch; and should avoid concentrated exposure to heat, humidity,
and again because of body habitus should avoid all exposure to hazards
such as unprotected heights and dangers machinery. The claimant also
suffers from anxiety-related disorders. However, he would be able to learn,
retain, and carry out simple work instructions; sustain concentration, effort,
and pace for simple work tasks in two-hour segments in an eight hour work
day, five days per week in a non-public, low-stress, object focused work
environment in which contact with co-workers and supervisors is casual and
infrequent, and can adapt adequately to situational conditions and changes
of a normal work setting without excessive productivity demands.
(Tr. 30-31). Based upon this RFC, the ALJ concluded at Step 4 that Plaintiff was able to
perform past relevant work as a material processor or dishwasher. (Tr. 33).
Notwithstanding the fact that he concluded Plaintiff could perform past relevant work,
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. 34). 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. (Id.). The VE testified that a hypothetical individual
with Plaintiff's vocational profile and RFC could work as a cleaner (19,000 in
Kentucky/1,570,000 nationally), laundry worker (2,500 in Kentucky/142,000 nationally), or
hand packer (2,500 in Kentucky/944,000 nationally). (Tr. 34-35). Based on the testimony
of the VE and Plaintiff’s age, education, work experience, and RFC, the ALJ found that
Plaintiff is capable of making a successful adjustment to other work and thus concluded
that he was not under a "disability," as defined by the Social Security Act. (Tr. 35).
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c.
Analysis
Plaintiff advances six arguments on appeal. First, Plaintiff argues the ALJ erred by
discounting the report by Sheila Virgin. Second, Plaintiff asserts that the ALJ failed to
properly consider the effects of his obesity.1 Third, Plaintiff contends that the ALJ erred by
discounting the reports by Dr. Melissa Couch and Deborah Whitehouse. Fourth, Plaintiff
claims that the ALJ erred by considering the Global Assessment Functioning (GAF) scores
referenced in the Comprehensive Care records. Fifth, Plaintiff asserts that the ALJ did not
fairly consider his reasons for not seeking regular treatment.2 Sixth, Plaintiff argues that
the ALJ did not fairly credit his testimony. Each of these arguments will be addressed in
turn.
1.
The ALJ did not err in discounting the Virgin report
Plaintiff takes issue with the ALJ’s treatment of the report authored by Sheila Virgin,
a nurse practitioner. In her report dated August 6, 2010, Ms. Virgin noted that she first
examined Plaintiff on June 25, 2010, that his most recent examination took place on that
date, that her office records contained a detailed history of Plaintiff, and that the x-ray of
his right knee showed “calcification patella, appears chronic and well-corticated.” (Tr. 358-
1
Plaintiff’s first two arguments–that the ALJ erred by discounting the Virgin report and
failed to properly consider the effects of his obesity–were made within the context of his
contention that there was no substantial evidence to support an RFC to perform medium work
activity. The Court, though, views and treats these arguments as distinct and thus addresses
them independently.
2
Plaintiff’s third, fourth, and fifth arguments–that the ALJ erred by discounting the Couch
and Whitehouse reports and by considering the GAF scores, and did not fairly consider his
reasons for not seeking regular treatment–were made within the context of his contention that
the ALJ did not consider the combined effect of his impairments. However, as with the first and
second arguments, the Court views and treats these arguments as distinct and thus addresses
them independently. See supra note 1.
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359). She acknowledged, though, that she had not seen him often, and that she was still
awaiting an MRI. (Tr. 358, 360).
Ms. Virgin opined that Plaintiff had functional limitations stemming from moderate
anxiety, depression, and right knee pain. (Tr. 359). These limitations included standing
and walking no more than one hour in an eight hour day, sitting no more than one hour in
an eight hour day, occasional balancing, and never climbing, stooping, crouching, kneeling,
or crawling. (Tr. 360-361). Ms. Virgin further opined that reaching, handling, feeling,
pushing/pulling, seeing, hearing, and speaking were affected by his impairment, but gave
no explanation as how those physical functions were affected nor pointed to any medical
findings in support.
(Tr. 361).
With respect to her ability to make occupational
adjustments, Ms. Virgin indicated that Plaintiff had no ability to deal with the public, interact
with supervisors, deal with work stress, function independently, or maintain attention, but
again gave little to no explanation with respect to this assessment. (Tr. 362-363).
In his decision, the ALJ chose to give less weight to Ms. Virgin’s reports than the
other evidence before him. (Tr. 33). In doing so, the ALJ noted that “[m]any of the limits
Ms. Virgin sets lack any relationship to the claimant’s conditions, and she set those
limitations prior to receiving the MRI results or the letter from Dr. [Robert] Hosey describing
the claimant’s condition. No evidence supports any unusual restrictions in the claimant’s
ability to stoop, sit, or tolerate exposure to chemicals.” (Id.). The ALJ further commented
that “the opinions of . . . Ms. Virgin include details not described in [her] treatment notes.
However, the claimant appears to have responded to a long checklist of symptoms for his
treatment, and it appears that . . . Ms. Virgin [is] merely parroting the claimant’s allegations
without question.” (Id.). Finally, the ALJ pointed out that the nurse “had limited contact on
6
which to base [her] opinion[], having treated the claimant for only two months prior to
completing [this form].” (Id.).
The Code of Federal Regulations distinguishes between opinions from “acceptable
medical sources” and “other sources.” See 20 C.F.R. §§ 404.1513, 416.913. Pursuant to
this regulatory framework, as a nurse practitioner, Ms. Virgin falls within the latter category.
See §§ 404.1513(d)(1), 416.913(d)(1) (characterizing nurse practitioners as “other
sources”). Because she is not an “acceptable medical source,” Ms. Virgin’s opinions are
neither “medical opinions” as defined in the regulations nor entitled to controlling weight,
even though she provided Plaintiff treatment. See §§ 404.1527(a)(2) and (c), 416.927(a)(2)
and (c) (defining "medical opinions" as statements from “acceptable medical sources” and
providing that "treating sources" may be entitled to controlling weight); §§ 404.1502,
416.902 (stating that an “acceptable medical source” includes “treating sources”).
This distinction, though, has its limits, as the criteria for evaluating medical opinions
from “acceptable medical sources” is no different than the factors used to assess opinions
from “other sources.” SSR 06-03p, 2006 WL 2329939, at *4 (Aug. 9, 2006). These factors
include:
How long the source has known and how frequently the source has seen the
individual;
How consistent the opinion is with other evidence;
The degree to which the source presents relevant evidence to support an
opinion;
How well the source explains the opinion;
Whether the source has a specialty or area of expertise related to the
individual's impairment(s), and
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Any other factors that tend to support or refute the opinion.
Id. at *4-5; see also 20 C.F.R. §§ 404.1527(c), 416.927(c) (explaining how medical opinions
from “acceptable medical sources” are weighed).
The ALJ’s evaluation of Ms. Virgin’s opinion clearly complies with Social Security
Ruling 06-03; there is no need to reiterate his rationale. The Court will, however,
individually address Plaintiff’s more specific contentions.
With respect to the ALJ’s conclusion that Ms. Virgin is “merely parroting the
claimant's allegations without question,” Plaintiff points out that Ms. Virgin reviewed an xray of his right knee. This contention is not well-taken, as it is nothing more than an
attempt to reassess Ms. Virgin’s opinion rather than show misapplication of a particular
factor. Plaintiff also seeks to downplay Ms. Virgin’s limited contact with him by pointing out
that office records contained his detailed medical history. Again, this argument is nothing
more than an attempt undermine the ALJ’s rationale. Finally, Plaintiff contends that Dr.
Hosey’s letter adds to, rather than subtracts from, the nurse’s report. This assertion,
however, has nothing to do with the point made by the ALJ in his decision, i.e., that Ms.
Virgin set functional limitations for Plaintiff before receiving an assessment from Dr. Hosey.
Moreover, it completely ignores the fact that she also did so without the benefit of an MRI.
Because the ALJ properly applied the criteria set forth in Social Security Ruling
06-03, he did not err in discounting Ms. Virgin’s reports.
2.
The ALJ considered the effects of obesity
Plaintiff next argues that the ALJ failed to reference the records supporting his
finding that a morbidly obese person could perform medium work activity. More generally,
he contends that the ALJ failed to consider the effects of his obesity on his RFC. In
8
support, he points to Social Security Ruling 02-1p, which reads, in pertinent part:
[O]besity is still addressed in our listings. In the final rule, we added
paragraphs to the prefaces of the musculoskeletal, respiratory, and
cardiovascular body system listings that provide guidance about the potential
effects obesity has in causing or contributing to impairments in those body
systems. See listings sections 1.00Q, 3.00I, and 4.00F. The paragraphs
state that we consider obesity to be a medically determinable impairment and
remind adjudicators to consider its effects when evaluating disability. The
provisions also remind adjudicators that the combined effects of obesity with
other impairments can be greater than the effects of each of the impairments
considered separately. They also instruct adjudicators to consider the effects
of obesity not only under the listings but also when assessing a claim at other
steps of the sequential evaluation process, including when assessing an
individual's residual functional capacity.
2000 WL 628049, at *1 (Sept. 12, 2002).
At the outset, the Court notes that the ALJ “is not required to recite the medical
opinion of a physician verbatim in his [RFC] finding.” Poe v. Comm'r of Soc. Sec., 342 F.
App'x 149, 157 (6th Cir. 2009) (citing 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3)).
Moreover, the ALJ did acknowledge that records from August 2010 show that Plaintiff is
morbidly obese, and found his obesity to be a severe impairment. (Tr. 29, 32). And, in
concluding that Plaintiff had the ability to perform medium work activity, the ALJ allowed
for the following additional restrictions “because of his body habitus”: never climb ladders,
ropes, or scaffolds; no more than frequently kneel or crouch; avoid concentrated exposure
to heat and humidity; and avoid all exposure to hazards such as unprotected heights and
dangers machinery. (Tr. 30-31). Plaintiff’s argument, then, is without merit.
3.
The ALJ did not err in discounting the reports by
Couch and Whitehouse
Plaintiff also takes issue with the ALJ's treatment of the reports authored by Dr.
Melissa Couch, a psychologist, and Deborah Whitehouse, a nurse practitioner. In her
9
consultive examination report, Dr. Couch noted that she examined Plaintiff on November
9, 2009, that he was given a clinical interview and mental status examination, and that his
aunt also provided information. (Tr. 317-318). No medical records, though, were available
for review. (Tr. 317).
Dr. Couch diagnosed Plaintiff as suffering from posttraumatic stress disorder, panic
disorder without agoraphobia, and social phobia, and deemed his prognosis to be guarded.
(Tr. 319). She specifically noted that Plaintiff’s condition is impaired, that he has difficulty
attending, that he would have difficulty with several aspects of a typical work setting,
including relating to peers, co-workers, and supervisors adequately, working with the
general public, and coping with stress and pressure, and that he would not be able to
maintain pace and persistence or meet deadlines and production quotas. (Tr. 319-320).
In Ms. Whitehouse’s report, August 24, 2010, she indicated that Plaintiff had a litany
of extreme work limitations related to his psychiatric state and commented that he has
trouble leaving home for any reason. (Tr. 365-366). According to the nurse, Plaintiff
exhibited numerous signs and symptoms, including psychomotor retardation, motor
tension, and vigilance and scanning. (Tr. 364).
In his decision, the ALJ chose to give limited weight to Dr. Couch’s evaluation and
less weight to Ms. Whitehouse’s report than the other evidence before him. (Tr. 32-33).
With respect to Dr. Couch, the ALJ noted that “her findings are based in large part on the
claimant’s report and are inconsistent with the medical records from Comprehensive Care
and with claimant’s past statements.” (Tr. 32). As to Ms. Whitehouse, the ALJ commented
that “the opinions of Ms. Whitehouse . . . include details not described in [her] treatment
notes. However, the claimant appears to have responded to a long checklist of symptoms
10
for his treatment, and it appears that Ms. Whitehouse . . . [is] merely parroting the
claimant's allegations without question." (Tr. 33). The ALJ also pointed out that the nurse
"had limited contact on which to base [her] opinion[], having treated the claimant for only
two months prior to completing [this form].” (Id.).
Pursuant to the regulatory framework outlined in the preceding section regarding Ms.
Virgin, Dr. Couch is an “acceptable medical source,” while Ms. Whitehouse is not. See §§
404.1513(a)(2) and (d)(1), 416.913(a)(2) and (d)(1) (characterizing psychologists as
"acceptable medical sources" and nurse practitioners as "other sources"). That said,
although Dr. Couch’s opinion is therefore a “medical opinion” as defined in the regulations,
it is not entitled to controlling weight because she was a “non-treating source.” See §§
404.1527(a)(2) and (c), 416.927(a)(2) and (c) (defining "medical opinions" as statements
from “acceptable medical sources” and providing that "treating sources" may be entitled to
controlling weight); §§ 404.1502, 416.902 (stating that an “acceptable medical source”
includes “treating sources”). The ALJ’s evaluative criteria, then, is the same as to both
reports. Compare 20 C.F.R. §§ 404.1527(c), 416.927(c) (explaining how medical opinions
from "acceptable medical sources" are weighed), with SSR 06-03p, 2006 WL 2329939, at
*4-5 (explaining how opinions for “other sources” are weighed). As in the preceding
section, the Court will not juxtapose the ALJ’s rationale against the factors set forth in the
regulations and Social Security Ruling 06-03, but will instead address Plaintiff’s specific
contentions.
With respect to the ALJ's conclusion that Dr. Couch’s findings are inconsistent with
the records from Comprehensive Care, Plaintiff disagrees and points out to various portions
of those records. (Doc. # 11, at 12). Plaintiff, though, makes no attempt to develop this
11
argument, so it is deemed waived. McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir.
1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”)
(internal quotations and brackets included).
Plaintiff also contests the ALJ’s notation that Dr. Couch’s findings are based in large
part on the claimant's report by asserting that treatment of the mentally ill primarily depends
upon subjective statements, as well as pointing out that Dr. Couch performed a battery of
testing. This argument is unpersuasive, as it is an attempt to reassess Dr. Couch’s opinion
rather than show improper evaluation by the ALJ, and it ignores the ALJ’s implicit
acknowledgment that Dr. Couch conducted an examination.
Because the ALJ properly applied the criteria set forth in the regulations and Social
Security Ruling 06-03, he did not err in discounting the reports by Dr. Couch and Ms.
Whitehouse.
4.
The ALJ did not err in considering the GAF scores
Intertwined with his argument that the ALJ improperly discounted the reports by Dr.
Couch and Ms. Whitehouse, Plaintiff complains about the ALJ’s reliance upon the GAF
scores contained in the Comprehensive Care records. According to those records, both
Dr. Timothy May and Rachael Hovermale, a nurse practitioner, assigned Plaintiff a score
of 60. (Tr. 413-414, 420). The ALJ subsequently referenced these assessments in his
decision, and specifically noted that such a score indicates no more than moderate
symptoms. (Tr. 31).
12
Plaintiff contends that the ALJ’s reliance on those scores is contrary to the
Commissioner’s own rules. In support, he points to the Sixth Circuit’s decision in DeBoard
v. Commissioner of Social Security, 211 F. App'x 411, 415 (6th Cir. 2006), in which the
appellate court stated that “the Commissioner ‘has declined to endorse the [GAF] score for
use in the Social Security and [Supplemental Security Income] disability programs, and has
indicated that [GAF] scores have no direct correlation to the severity requirements of the
mental disorders listings.’” (quoting Wind v. Barnhart, 133 F. App'x 684, 692 n. 5 (11th Cir.
2005)) (some internal quotations omitted).
At the outset, the Court notes that, in making this argument, Plaintiff all-but
concedes that Dr. Couch's findings are in fact inconsistent with the records from
Comprehensive Care. More to the point, Plaintiff has misconstrued DeBoard and ignored
other Sixth Circuit case law.
In DeBoard, the claimant argued that the ALJ erred in not giving the proper weight
to an earlier GAF score administered by a purported treating source. Id. at 415. The
claimant had initially scored a 50, and then subsequently scored a 55 on an exam
conducted by a consulting physician. Id. The Sixth Circuit rejected this argument, holding
that “[a]ny failure to reference [GAF] scores or to compare different scores attributed to the
same subject, without more, does not require reversal.” Id. at 416. In reaching that result,
the appellate court mentioned the language referenced by Plaintiff–that the Commissioner
has declined to endorse GAF scores for use in disability programs and indicated that they
have no direct correlation to the severity requirements of the listings–to explain why it had
previously “affirmed denials of disability benefits where applicants had [GAF] scores of 50
or lower.” Id. at 415 (citations omitted).
13
Assertions made by the Sixth Circuit in two more recent cases are further instructive.
In Oliver v. Commissioner of Social Security, 415 F. App'x 681, 684 (6th Cir. 2011), the
appellate court recognized that “[a] GAF score is . . . not dispositive of anything in and of
itself,” but it can be “significant to the extent that it elucidates an individual's underlying
mental issues.” (citation omitted). Perhaps more even more noteworthy, in Collins v.
Commissioner of Social Security, 357 F. App'x 663, 669 (6th Cir. 2009) the appellate court
held that the record supported the ALJ’s finding that the claimant only needed conservative
mental health treatment because it contained documentation showing that his GAF score
improved over time with medical treatment.
In light of a more thorough reading of DeBoard, as well as the Sixth Circuit’s
decisions in Oliver and Collins, Plaintiff’s protestations as to the consideration of these
scores fail.
5.
Any error by the ALJ in commenting on Plaintiff's failure to seek
treatment does not justify disturbing the ALJ’s credibility
determination
In concluding that Plaintiff could perform medium work activity, the ALJ found that
Plaintiff's statements “concerning the intensity, persistence, and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above [RFC]
assessment.” (Tr. 32). Plaintiff now complains because, in reaching that conclusion, the
ALJ noted that Plaintiff “has sought little treatment for his mental health complaints,
attending counseling at Comprehensive Care for only a five month period in 2007, and
requesting medication from his primary care provider in July of 2010.” (Tr. 33). In support
of this contention, he points to Social Security Ruling 96-7p, which reads, in pertinent part:
14
[T]he individual's statements may be less credible if the level or frequency of
treatment is inconsistent with the level of complaints, or if the medical reports
or records show that the individual is not following the treatment as
prescribed and there are no good reasons for this failure. However, the
adjudicator must not draw any inferences about an individual's symptoms
and their functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual may
provide, or other information in the case record, that may explain infrequent
or irregular medical visits or failure to seek medical treatment.
1996 WL 374186, at *7 (July 2, 1996).
However, even if the ALJ’s rationale with respect to Plaintiff's failure to seek
treatment ran afoul of Social Security Ruling 96-7p, the ALJ's credibility determination as
to Plaintiff’s mental health condition must not be disturbed if the additional considerations
are otherwise supported by substantial evidence. As the Sixth Circuit explained in Walters
v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir. 1997):
The regulations indicate that if disabling severity cannot be shown by
objective medical evidence alone, the Commissioner will also consider other
factors, such as daily activities and the type and dosage of medication taken.
In so doing, the Commissioner has the power and discretion to weigh all of
the evidence and to resolve the significant conflicts in the administrative
record. The absence of sufficient objective medical evidence makes
credibility a particularly relevant issue, and in such circumstances, this court
will generally defer to the Commissioner's assessment when it is supported
by an adequate basis.
(citations omitted); see also Felisky v. Bowen, 35 F.3d 1027, 1040 (6th Cir. 1994) (“None
of these factors supports the ALJ's decision to discount Felisky's credibility.”). This Court,
then, will consider the other reasons set forth by the ALJ.
i.
Comprehensive Care Records
As discussed in the preceding section, the ALJ referenced the GAF assessments
made by Dr. Timothy May and Rachael Hovermale. Again, both medical professionals
assigned Plaintiff a score of 60, which suggests moderate symptoms or moderate
15
impairment of social or occupational functioning. Kornecky v. Comm'r of Soc. Sec., 167
F. App'x 496, 511 (6th Cir. 2006).
Besides those scores, the ALJ noted that Dr. May diagnosed Plaintiff as suffering
from major depressive disorder and panic disorder with agoraphobia, but ruled out
psychosis and bipolar disorder.
(Tr. 31, 420).
He also considered the psychiatric
evaluation of Ms. Hovermale, who observed that Plaintiff’s speech was goal-directed and
reality based, that he exhibited good eye contact and no psychomotor agitation, that his
mood was sometimes depressed but other times within normal limits, and that he was
articulate, goal-directed, and reality-based. (Tr. 31, 413-414). She diagnosed Plaintiff as
suffering from depressive disorder not otherwise specified and panic disorder with
agoraphobia, but ruled major depressive disorder without psychotic features and
posttraumatic stress disorder. (Id.).
ii.
Reports by Dr. Couch and Ms. Virgin
Although the ALJ decided to give limited weight to Dr. Couch’s opinion and less
weight to Ms. Virgin’s report, he did reference certain determinations made by each medical
professional. Specifically, Dr. Couch noted that Plaintiff had adequate ability to follow rules
and maintain appropriate behavior without disrupting others, that he can work with objects,
that he is able to perform simple, repetitive tasks, that he can complete simple one or two
step instructions, and that he can recall, understand, and execute basic instructions. (Tr.
32, 317, 319-320). Furthermore, Ms. Virgin indicated in her report that Plaintiff suffers from
only moderate anxiety and depression. (Tr. 32, 358-359).
16
iii.
Plaintiff’s Statements
Finally, the ALJ noted various statements made by Plaintiff that undermined the
credibility of his complaints. While he claims an isolated, reclusive life with no social
contact, the ALJ pointed out that intake notes from Comprehensive Care indicate that
Plaintiff described himself as Wiccan and stated that he attended meetings and found them
supportive. (Tr. 33, 415). The ALJ further noted that medical records from August 2007
contain Plaintiff’s report of an assault that occurred at a friend’s apartment. (Tr. 33, 254).
Finally, while Plaintiff claims performs no household chores, the ALJ pointed out that
Plaintiff has reported that he cares for his personal hygiene and can cook, clean, and
perform other chores. (Tr. 33, 317, 319).
These justifications are reasonable and supported by substantial evidence in the
record. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). The ALJ’s
comment, then, does not justify disturbing the his credibility determination.
6.
Plaintiff’s argument as to the ALJ’s consideration of
his testimony is without merit
Plaintiff’s last contention is that the ALJ did not fairly credit his testimony that he
could only walk fifteen to twenty feet and stand about ten minutes, and that he has trouble
getting in and out of vehicles due to his knee problems. (Tr. 54). In support, he points to
Social Security Ruling 96-7p, which reads, in pertinent part:
It is not sufficient for the adjudicator to make a single, conclusory statement
that “the individual's allegations have been considered” or that “the
allegations are (or are not) credible.” It is also not enough for the adjudicator
simply to recite the factors that are described in the regulations for evaluating
symptoms.
1996 WL 374186, at *2.
17
According to Plaintiff, this case mirrors Berkowski v. Comm'r of Soc. Sec., 652 F.
Supp. 2d 846, 856-857 (E.D. Mich. 2009), in which the Eastern District of Michigan
concluded that the ALJ’s credibility determination with respect to the severity of pain
allegations was not supported by substantial evidence because he did not explain how he
discounted the claimant’s statements. Specifically, the ALJ did not address either the
claimant’s reports of pain, the physician's reports of the effectiveness of pain management
and medication, or the claimant’s need to lie down, and misstated the claimant’s activities
of daily living. Id. at 856.
This case is nothing like Berkowski. Again, the ALJ noted various contradictory
statements made by Plaintiff, including that he cares for his personal hygiene and can cook,
clean, and perform other household chores. The ALJ also acknowledged that the MRI of
Plaintiff’s right knee identified a tear in the posterior horn of the medial meniscus, but
further commented that the letter from Dr. Hosey states that Plaintiff did not need surgery.
(Tr. 32, 377, 379). Instead, Dr. Hosey felt that Plaintiff only needed to wear a knee brace
for stability, work on strengthening exercises, and lose weight. (Tr. 32, 377). As in the
preceding section, there is no reason to justify disturbing the ALJ’s credibility determination.
III.
CONCLUSION
For the reasons stated herein, the Court concludes that the ALJ’s finding that
Plaintiff was not disabled for purposes of the Social Security Act was supported by
substantial evidence. Accordingly, for the reasons stated,
IT IS ORDERED as follows:
1.
The decision of the Commissioner is supported by substantial evidence and
is hereby AFFIRMED;
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2.
Plaintiff’s Motion for Summary Judgment (Doc. # 11) is hereby DENIED;
3.
Defendant’s Motion for Summary Judgment (Doc. # 12) is hereby
GRANTED;
4.
A Judgment affirming this matter will be entered contemporaneously
herewith.
This 22nd day of March 2013.
G:\DATA\SocialSecurity\MOOs\Lexington\5-12-248 Lewis MOO.wpd
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