Pethers v. Commissioner of Social Security
Filing
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OPINION; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT PETHERS,
)
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Plaintiff,
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v.
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COMMISSIONER OF
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SOCIAL SECURITY,
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)
Defendant.
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____________________________________)
Case No. 1:12-cv-678
Honorable Joseph G. Scoville
OPINION
This is a social security action brought under 42 U.S.C. §§ 405(g), 1383(c)(3) seeking
review of a final decision of the Commissioner of Social Security denying plaintiff’s claims for
disability insurance benefits (DIB) and supplemental security income (SSI) benefits. On August 15,
2005, plaintiff filed his applications for benefits alleging a January 1, 2003 onset of disability.1 (A.R.
190-94, 772-74). Plaintiff’s disability insured status expired on September 30, 2007. Thus, it was
plaintiff’s burden on his claim for DIB benefits to submit evidence demonstrating that he was
disabled on or before September 30, 2007. See Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir.
1990).
1
Administrative res judicata stemming from the denial of an earlier claim barred any onset
of disability before April 14, 2004. (A.R. 31-39). Further, SSI benefits are not awarded retroactively
for months prior to the application for benefits. 20 C.F.R. § 416.335; see Kelley v. Commissioner,
566 F.3d 347, 349 n.5 (3d Cir. 2009); see also Newsom v. Social Security Admin., 100 F. App’x
502, 504 (6th Cir. 2004). The earliest month in which SSI benefits are payable is the month after
the application for SSI benefits is filed. Thus, September 2005 is plaintiff’s earliest possible
entitlement to SSI benefits.
Plaintiff’s claims for DIB and SSI benefits were denied on initial review. On August
25, 2008, plaintiff received a hearing before an administrative law judge (ALJ), at which he was
represented by counsel. On October 21, 2008, the ALJ issued a partially favorable decision finding
that plaintiff was disabled on and after January 1, 2007, but he was not disabled at any time between
January 1, 2003, and December 31, 2006. (A.R. 76-87). The Appeals Council granted plaintiff’s
request for review. On July 30, 2010, the Appeals Council held that administrative res judicata
barred any claim by plaintiff asserting an onset of disability before April 14, 2004. (A.R. 92). The
Appeals Council “vacate[d] the ALJ’s entire hearing decision and remand[ed] the case for further
proceedings.” (A.R. 92). On January 13, 2011, plaintiff received a hearing before an administrative
law judge (ALJ), at which he was represented by counsel. (A.R. 805-70). On March 29, 2011, the
ALJ issued a decision finding that plaintiff was not disabled. (A.R. 16-26). The Appeals Council
denied review on May 22, 2012 (A.R. 6-8), and the ALJ’s decision became the Commissioner’s final
decision.
Plaintiff filed a timely complaint seeking judicial review of the Commissioner’s
decision. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, the
parties voluntarily consented to have a United States magistrate judge conduct all further proceedings
in this case, including entry of final judgment.
(docket # 15).
Plaintiff argues that the
Commissioner’s decision should be overturned on the following grounds:
1.
The ALJ “wrongly concluded that res judicata required him to adopt the portion of
the 2004 decision concerning Plaintiff’s physical limitations[;]” and
2.
“Substantial evidence does not support the weight given to Dr. Greenbaum’s
opinions.”
(Plf. Brief at 1, docket # 16). The Commissioner’s decision will be affirmed.
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Standard of Review
When reviewing the grant or denial of social security benefits, this court is to
determine whether the Commissioner’s findings are supported by substantial evidence and whether
the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124,
125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Substantial evidence is
defined as “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Heston v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007).
The scope of the court’s review is limited. Buxton, 246 F.3d at 772. The court does not review the
evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Walters
v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). “The findings of the [Commissioner] as to any
fact if supported by substantial evidence shall be conclusive . . . .” 42 U.S.C. § 405(g); see
McClanahan v. Commissioner, 474 F.3d 830, 833 (6th Cir. 2006). “The findings of the
Commissioner are not subject to reversal merely because there exists in the record substantial
evidence to support a different conclusion. . . . This is so because there is a ‘zone of choice’ within
which the Commissioner can act without fear of court interference.” Buxton, 246 F.3d at 772-73.
“If supported by substantial evidence, the [Commissioner’s] determination must stand regardless of
whether the reviewing court would resolve the issues of fact in dispute differently.” Bogle v.
Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996)
(“[E]ven if the district court -- had it been in the position of the ALJ -- would have decided the
matter differently than the ALJ did, and even if substantial evidence also would have supported a
finding other than the one the ALJ made, the district court erred in reversing the ALJ.”). “[T]he
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Commissioner’s decision cannot be overturned if substantial evidence, or even a preponderance of
the evidence supports the claimant’s position, so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Commissioner, 336 F.3d 469, 477 (6th Cir. 2003); see
Kyle v. Commissioner, 609 F.3d 847, 854 (6th Cir. 2010).
Discussion
The ALJ found that plaintiff met the disability insured requirement of the Social
Security Act from his alleged onset of disability through September 30, 2007, but not thereafter.
(A.R. 18). Plaintiff had not engaged in substantial gainful activity on or after his alleged onset of
disability. (A.R. 18). Plaintiff had the following severe impairments: status-post 1996 kidney
transplant, an anxiety disorder with post-traumatic stress disorder (PTSD) features, a dysthymic
disorder, and a personality disorder with mixed features. (A.R. 19). Plaintiff did not have an
impairment or combination of impairments which met or equaled the requirements of the listing of
impairments. (A.R. 20). The ALJ found that plaintiff retained the residual functional capacity
(RFC) for a limited range of light work:
After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform work limited to lifting or carrying 20 pounds
occasionally and 10 pounds frequently. He can sit for up to 6 hours, stand for up to 6 hours,
and or walk up to 6 hours in an 8-hour workday. He must avoid jobs that require advanced
reading comprehension skills. He can perform simple, routine tasks and maintain his
attention and concentration for up to 2-hour blocks of time accommodated by normal breaks
and meal periods. There can be no exposure to the general public and only occasional
exposure to co-workers and supervisors, but there can be no close, critical supervision. He
must be in a low stress, structured work setting. He would be anticipated to miss 1-2 days
of work each month due to symptoms.
(A.R. 21). The ALJ found that plaintiff’s subjective complaints were not fully credible. (A.R. 2124). Plaintiff was unable to perform his past relevant work. (A.R. 24). Plaintiff was 39-years-old
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as of the date of his alleged onset of disability, 44-years-old when his disability insured status
expired, and 47-years-old on the date of the ALJ’s decision. Thus, at all times relevant to his claims
for DIB and SSI benefits, plaintiff was classified as a younger individual. (A.R. 24). Plaintiff has
a limited education and is able to communicate in English. (A.R. 24). The transferability of job
skills was not an issue because all plaintiff’s past relevant work was unskilled. (A.R. 25). The ALJ
then turned to the testimony of a vocational expert (VE). In response to a hypothetical question
regarding a person of plaintiff’s age, and with his RFC, education, and work experience, the VE
testified that there were approximately 33,000 jobs in Michigan that the hypothetical person would
be capable of performing. (A.R. 863-69). The ALJ found that this constituted a significant number
of jobs. Using Rule 202.17 of the Medical-Vocational Guidelines as a framework, the ALJ held that
plaintiff was not disabled. (A.R. 25-26).
1.
Plaintiff argues that the ALJ committed error in adopting the physical residual
functional capacity (RFC) findings made in the administrative decision entered on April 13, 2004.
(Plf. Brief at 13-17; Reply Brief at 1-3, docket # 18). In 2004, an ALJ found that plaintiff retained
the RFC to perform a limited range of light work. (A.R. 35-36). Under the rule of Drummond v.
Commissioner, 126 F.3d 837 (6th Cir. 1997), and its progeny, the ALJ was required to “adopt and
be bound by the finding of [the] claimant’s residual functional capacity or other findings required
at a step of the sequential evaluation process.” Caudill v. Commissioner, 424 F. App’x 510, 514 (6th
Cir. 2011); see Miller v. Commissioner, No. 12-3644, 2013 WL 1705026, at * 1 (6th Cir. Apr. 22,
2013); Haun v. Commissioner, 107 F. App’x 462, 464 (6th Cir. 2004). The ALJ could not
“redetermine the findings of a claimant’s residual functional capacity or other issues previously
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determined in the absence of new and additional material evidence or changed circumstances.”
Caudill, 424 F. App’x at 514. The ALJ considered all the evidence regarding medical care that
plaintiff had received after April 13, 2004. The ALJ found that “[n]o significant change in the
claimant’s physical condition [was] supported by the evidence of record, so that portion of the prior
residual functional capacity [was] affirmed in its entirety.” (A.R. 21). “[C]hanges in the mental
functional limitations [in the RFC] were made based on [] more recent evidence.” (A.R. 21).
Plaintiff argues that the ALJ “wrongly applied Drummond” when he indicated that
the findings on the exertional component of the RFC were binding because “Drummond does not
require the ALJ to parse out functional elementals from a prior RFC determination . . . .” (Plf. Brief
at 15). Plaintiff cites no legal authority in support of his argument that Drummond established an
“all or nothing” rule applicable to an earlier RFC finding. If the Sixth Circuit had intended such a
narrow interpretation of its Drummond decision, it would have undoubtedly said so sometime during
the last sixteen years. Under plaintiff’s interpretation, the Drummond rule could easily be bypassed
through small modifications in the RFC, which would allow the ALJ to make new factual findings
unrestricted by the earlier decision. For example, a minor alteration in an RFC based on a change
in functional limitations stemming from a mental impairment such as depression would allow the
ALJ to make an entirely different finding regarding the exertional component of the claimant’s RFC
without any new evidence related to a physical impairment. This would be utterly inconsistent with
the Sixth Circuit’s emphasis in Drummond that “[j]ust as a social security claimant is barred from
relitigating an issue that has previously been determined, so is the Commissioner.” 126 F.3d at 842.
In addition, the ALJ’s analysis in this case was consistent with the analytical approach
the Sixth Circuit utilized in its most recent decision applying the Drummond rule. In Rudd v.
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Commissioner, No. 12-6136, 2013 WL 4767020, at * 6 (6th Cir. Sept. 5, 2013), the Sixth Circuit
first considered the evidence regarding the changes in the physical component of the claimant’s RFC
and found that “the record support[ed] the ALJ’s conclusion that [the claimant’s] physical RFC
[had] improved since the 2007 decision.” Id. The Court of Appeals then considered the evidence
regarding changes in the claimant’s mental impairments and held that “substantial evidence
support[ed] the ALJ’s finding that [the claimant’s] mental condition had changed such that the prior
mental RFC was not binding.” Id. This court finds no error in the ALJ’s application of the
Drummond rule.
Plaintiff makes a related argument that there was evidence from which the ALJ could
have made a RFC finding which included more significant physical restrictions. (Plf. Brief at 1516). Plaintiff’s burden on appeal is much higher than identifying evidence on which the ALJ could
have based a finding in his favor. “The findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence to support a different conclusion. .
. . This is so because there is a ‘zone of choice’ within which the Commissioner can act without fear
of court interference.” Buxton, 246 F.3d at 772-73. The Commissioner’s decision cannot be
overturned if substantial evidence, or even a preponderance of the evidence supports the claimant’s
position, so long as substantial evidence also supports the conclusion reached by the ALJ. Jones v.
Commissioner, 336 F.3d at 477. There is more than substantial evidence supporting the ALJ’s
factual findings that plaintiff had no significant change in the physical component of his RFC and
that he retained the RFC for a limited range of light work. (A.R. 22-23).
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2.
Plaintiff argues that the ALJ violated the treating physician rule in the weight he gave
to the opinions of Psychologist Irwin Greenbaum. (Plf. Brief at 17-19; Reply Brief at 3-4). The
issue of whether the claimant is disabled within the meaning of the Social Security Act is reserved
to the Commissioner. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1); see Warner v. Commissioner,
375 F.3d 387, 390 (6th Cir. 2004). A treating physician’s opinion that a patient is disabled is not
entitled to any special significance. See 20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), (3); Bass
v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007); Sims v. Commissioner, 406 F. App’x 977, 980 n.1
(6th Cir. 2011) (“[T]he determination of disability [is] the prerogative of the Commissioner, not the
treating physician.”). Likewise, “no special significance” is attached to treating physician opinions
regarding the credibility of the plaintiff’s subjective complaints, RFC, or whether the plaintiff’s
impairments meet or equal the requirements of a listed impairment because they are administrative
issues reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2), (3); see Allen
v. Commissioner, 561 F.3d 646, 652 (6th Cir. 2009).
Generally, the medical opinions of treating physicians are given substantial, if not
controlling deference. See Johnson v. Commissioner, 652 F.3d 646, 651 (6th Cir. 2011). “[T]he
opinion of a treating physician does not receive controlling weight merely by virtue of the fact that
it is from a treating physician. Rather, it is accorded controlling weight where it is ‘well supported
by medically acceptable clinical and laboratory diagnostic techniques’ and is not ‘inconsistent . . .
with the other substantial evidence in the case record.’” Massey v. Commissioner, 409 F. App’x 917,
921 (6th Cir. 2011) (quoting Blakley v. Commissioner, 581 F.3d 399, 406 (6th Cir. 2009)). A
treating physician’s opinion is not entitled to controlling weight where it is not “well-supported by
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medically acceptable clinical and laboratory diagnostic techniques” and is “inconsistent with the
other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The
ALJ “is not bound by conclusory statements of doctors, particularly where they are unsupported by
detailed objective criteria and documentation.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
An opinion that is based on the claimant’s reporting of his symptoms is not entitled to controlling
weight. See Young v. Secretary of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990); see
also Francis v. Commissioner, 414 F. App’x 802, 804 (6th Cir. 2011) (A physician’s statement that
merely regurgitates a claimant’s self-described symptoms “is not a medical opinion at all.”).
Even when a treating source’s medical opinion is not given controlling weight
because it is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with other substantial evidence in the record, the opinion should not
necessarily be completely rejected; the weight to be given to the opinion is determined by a set of
factors, including treatment relationship, supportability, consistency, specialization, and other
factors. See Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions,
SSR 96-2p (reprinted at 1996 WL 374188 (SSA July 2, 1996)); 20 C.F.R. §§ 404.1527(c),
416.927(c); Martin v. Commissioner, 170 F. App’x 369, 372 (6th Cir. 2006).
The Sixth Circuit has held that claimants are “entitled to receive good reasons for the
weight accorded their treating sources independent of their substantive right to receive disability
benefits.” Smith v. Commissioner, 482 F.3d 873, 875-76 (6th Cir. 2007); see Cole v. Astrue, 661
F.3d 931, 937-38 (6th Cir. 2011); Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004).
“[T]he procedural requirement exists, in part, for claimants to understand why the administrative
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bureaucracy deems them not disabled when physicians are telling them that they are.” Smith, 482
F.3d at 876; see Gayheart v. Commissioner, 710 F.3d at 376.
The ALJ found that Psychologist Greenbaum’s opinions2 were entitled to little
weight:
Other than the very limited treatment notes of Dr. Greenbaum (Exhibit B12F) and multiple
statements under oath from Dr. Greenbaum, there is no psychological treatment after 2005.
The claimant did receive some treatment in 2005 at Pine Rest (Exhibit B9F). He was
diagnosed with depressive and anxiety disorders, Janna Boes, LMSW, concluded in October
2005 that the claimant’s Global Assessment of Function score (GAF) was 45, but Dr. Carlos
Marcano, M.D., concluded the next month that the GAF was 53 (Exhibit B9F/9). While still
significant, this does not equate to the severe inability to function described by the claimant.
A consultative examiner, Wayne Kinzie, questioned in 2005 whether the claimant had
borderline intellectual function, but this was just a guess, not a diagnosis, and no testing
confirmed it (Exhibit B4F). Dr. Greenbaum suggested the same thing, but again with no
supportive evidence. Claimant’s current claims of illiteracy are contradicted by Dr.
Greenbaum, who indicated that the claimant appeared capable of understanding the MMPI
(B16F/10) and also at Exhibit B1E/6-7 where he confirms that he can read/understand
English and denied receiving special education classes. This is consistent with the evidence
provided in the prior hearing at Exhibit B1B/9.
The claimant relies heavily on the treatment notes and opinions of Dr. Greenbaum. It should
first be noted that the treatment notes are not particularly detailed or informative. Dr.
Greenbaum conceded that his notes are not meant to support his diagnosis, but only serve as
a device to jog his memory when providing counseling (Exhibit B17F/4). Instead of basing
his opinion on the information in those notes, or even information gleaned during official
therapy sessions, support for Dr. Greenbaum’s ultimate conclusion of total psychological
disability (Exhibits B10F; B11F) was based on his recollections of these sessions and
subsequent “informal” sessions. These other sessions occurred when the claimant would call
him up or they would accidentally meet out in public (Exhibit B17F/5). Rather belatedly,
Dr. Greenbaum performed more formal testing of the claimant in 2011 (Exhibit B18F). The
doctor felt that testing confirmed his opinion that the claimant is completely disabled.
2
Psychologist Greenbaum’s professional contact with plaintiff was extremely limited. He
saw plaintiff for four counseling sessions in 2006, one or two sessions in 2008, and one session in
January 2011. (A.R. 433, 453-54, 589-605). The ALJ gave plaintiff the benefit of a doubt when he
treated Greenbaum’s opinions as those of a treating psychologist. See Kornecky v. Commissioner,
167 F. App’x 496, 506-07 (6th Cir. 2006).
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Little weight is given to Dr. Greenbaum’s conclusions. He treated the claimant formally for
about four visits in 2006 (Exhibit B12F). He stated in January 2008, that these four visits,
plus occasional contacts thereafter, convinced him that the claimant was disabled based on
a depressive disorder (Exhibit B10F). He also concluded that this was the case since 1999
(Exhibit B11F), some six or seven years prior to any evaluation. One wonders how the
doctor could have had many meaningful visits with the claimant during casual public contact
when the claimant was allegedly housebound most of the time. It is also a concern that the
doctor felt that some of the psychological disability was due to severe pain (Exhibit
B10F/15), affirmed in a later statement (Exhibit B17F/6), even though the claimant was
rarely voicing complaints of anything more than intermittent pain. In addition, one of the
more persuasive elements in the clinical picture in Dr. Greenbaum’s mind was the traumatic
experience of the fire (Exhibit B16F) – a history the doctor did not have when he first
disabled the claimant and which is not mentioned elsewhere. It appears Dr. Greenbaum
worked backwards from the claimant’s statements of disability, finding a basis for that
conclusion, rather than taking the history and any corroborating evidence and working
forward to a diagnosis.
Finally, in spite of Dr. Greenbaum being persuaded by the claimant’s history to him of past
trauma and current severe symptoms, most of the treating doctors, including the primary care
doctor, never noted any severe depressive symptoms or took a history of the claimant being
unable or unwilling to leave his home. The closest history is that in the Pine Rest records,
where the last treatment note, of May 2006, noted the claimant was “pleasant,” with a
congruent mood and appropriate affect (Exhibit B9F/15). In spite of the claimant’s statement
in his September 2005 functional self-assessment describing delusions (Exhibit B2E/2, 8),
Dr. Marcano of Pine Rest reported he denied any hallucinations or psychotic symptoms
(Exhibit B9F/15). The rather benign mental status exam findings noted by then-treating
psychiatrist Dr. Marcano are widely inconsistent with the drastic mental limitations
articulated by Dr. Greenbaum at Exhibits B11F and B18F. Of further significance are the
facts that the claimant has had no continuing psychiatric care or counseling since his contact
with Dr. Greenbaum in November 2006, that his medical evidence of record since that time
is relatively devoid of psychologic complaints (note Exhibits B14F/28, 30-31; B21F/3, 7, 11,
15, 17, 19) and that he has rarely been on any psychotropic medication since November
2006.
(A.R. 23-24). The ALJ found that the opinions of plaintiff’s treating psychiatrist, Dr. Carlos
Marcano, M.D. (A.R. 422-24, 427-28), were more persuasive and consistent with the evidence
presented. He found that the opinions of Psychologist Jeffrey Andert, a medical expert who testified
at plaintiff’s hearing (A.R. 187, 827-45), were entitled to considerable weight because he “had the
benefit of a review of the full psychological treatment record” and his conclusions were “very
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consistent with that evidence.” (A.R. 24). Psychologist Greenbaum’s opinions were not well
supported by objective evidence. His progress notes did not support the extreme restrictions he
suggested in his statements to plaintiff’s attorney. (Compare A.R. 453-54 with A.R. 429-50, 56579, 583-87). The court finds no violation of the treating physician rule.
Conclusion
For the reasons set forth herein, the Commissioner’s decision will be affirmed.
Dated: September 30, 2013
/s/ Joseph G. Scoville
United States Magistrate Judge
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