Dorton v. Commissioner of Social Security
Filing
19
Memorandum Opinion and Order affirming the final decision of the Commissioner. Magistrate Judge Nancy A. Vecchiarelli on 9/4/2012. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SUZANA RENEE DORTON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CASE NO. 1:11-cv-2790
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Plaintiff, Suzana Renee Dorton (“Plaintiff”), challenges the final decision of
Defendant, Michael J. Astrue, Commissioner of Social Security (“Commissioner”),
denying her application for a Period of Disability (“POD”) and Disability Insurance
Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 (“Act”).
This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the
undersigned United States Magistrate Judge pursuant to the consent of the parties
entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below,
the Commissioner’s final decision is AFFIRMED.
I.
PROCEDURAL HISTORY
On November 9, 2008, Plaintiff filed her application for a POD and DIB and
alleged a disability onset date of November 30, 2007. (Transcript (“Tr.”) 15.) The
application was denied initially and upon reconsideration, so Plaintiff requested a
hearing before an administrative law judge (“ALJ”). (Tr. 15.) On March 18, 2011, an
ALJ held Plaintiff’s hearing by video conference. (Tr. 15.) Plaintiff participated in the
hearing, was represented by counsel, and testified. (Tr. 15.) A vocational expert (“VE”)
also participated and testified. (Tr. 15.) On April 22, 2011, the ALJ found Plaintiff not
disabled. (Tr. 24.) On October 28, 2011, the Appeals Council declined to review the
ALJ’s decision, so the ALJ’s decision became the Commissioner’s final decision. (Tr.
1.)
On December 27, 2011, Plaintiff filed her complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) On June 25, 2012, Plaintiff filed her Brief
on the Merits. (Doc. No. 16.) On August 1, 2012, the Commissioner filed his Brief on
the Merits. (Doc. No. 17.) On August 13, 2012, Plaintiff filed a Reply Brief. (Doc. No.
18.)
Plaintiff asserts the following four assignments of error: (1) the ALJ failed to
follow the treating physician rule by declining to give controlling weight to the opinions of
treating psychiatrist Yolanda Ganchorre, M.D. (Pl. Br. at 11-15.); (2) (2) the ALJ
improperly evaluated Plaintiff’s credibility (PL. Br. at 16-19.); (3) the ALJ’s conclusion
that Plaintiff was not per se disabled was not supported by substantial evidence
(Plaintiff’s Brief (“Pl. Br.”) at 9-11.); and (4) the ALJ relied on flawed testimony from the
VE (Pl. Br. at 19-20.).
2
II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was 41 years old on her alleged disability onset date. (Tr. 23.) She had
at least a high school education and was able to communicate in English. (Tr. 23.)
She had past relevant work as an IT Director. (Tr. 23.)
B.
Medical Evidence1
1.
Treating Providers
On September 5, 2008, Plaintiff was examined by Dr. Ganchorre upon referral
from her primary physician. (Tr. 415.) Plaintiff complained of increasing panic attacks,
an inability to sleep due to nightmares, and depression. (Tr. 415-16.) She described
numerous instances of abuse she and her siblings suffered at the hands of their
parents during her childhood, as well as her difficulties in maintaining employment as a
result of the effects of the trauma she experienced as a child. (Tr. 415-16.) Plaintiff
related a past history of drug abuse, specifically Percocet. (Tr. 415.) Dr. Ganchorre
diagnosed Plaintiff with severe depression and post-traumatic stress disorder (“PTSD”),
and assigned her a Global Assessment of Functioning (“GAF”) score of 40.2 (Tr. 416.)
1
In addition to her mental impairments, Plaintiff alleged disability on the basis
of injuries to her back and ankle. (Tr. at 17-18.) The ALJ determined that
Plaintiff was not disabled on the basis of her physical impairments. (Id.)
Plaintiff does not challenge that conclusion in her Brief.
2
A GAF score between 31 and 40 indicates some impairment in reality testing
or communication, or major impairment in several areas, such as work or
school, family relations, judgment, thinking or mood. A person who scores in
this range may have illogical or irrelevant speech, and may avoid friends,
neglect family and be unable to work. See Diagnostic and Statistical Manual
of Mental Disorders 34 (American Psychiatric Association, 4th ed. rev., 2000).
3
Dr. Ganchorre prescribed Pristiq and Seroquel, and recommended that Plaintiff seek
treatment from Daniel Jones, Ph.D., a psychologist. (Id.)
On October 2, 2008, Plaintiff began treating with Dr. Jones. (Tr. 437.) She
reported a history of PTSD and panic attacks, as well as past treatment at the Betty
Ford Center. (Id.) She indicated that she had experienced incidents of losing track of
time for as long as four and a half hours per day, and that she had once “driven from
Twinsburg to Stow and [found] herself end[ing] up in Columbus.” (Id.)
On October 6, 2008, Dr. Ganchorre noted that Plaintiff was “very excited to tell
me that she is really feeling much, much better with the treatment, “ was “feeling more
encouraged with life” and “sleeping better,” and that her depression was starting to
improve. (Tr. 436.) During an October 9, 2008 session with Dr. Jones, Plaintiff
indicated that her panic attacks were decreasing in frequency to “maybe a couple of
times a day,” and that she was using coping strategies to reduce her anxiety. (Tr. 435.)
In November 2008, Dr. Ganchorre noted that Plaintiff was responding well on the
Seroquel, which was helping her sleep and moderating her mood swings, and that she
was taking Pristique for depression. (Tr. 434.) Dr. Ganchorre characterized Plaintiff’s
response to treatment as “good.” (Id.)
On December 11, 2008, Plaintiff told Dr. Jones that her mood was “more leveled
with the medication,” and that her sleep had improved with decreasing nightmares. (Tr.
433). Plaintiff complained about time loss, lack of focus and difficulty prioritizing in her
life. (Id.) She described instances where she “will often lose track of time, will then
come to and realize that she is saying something . . . to her father [like], ‘why did you do
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this to us.’” (Id.) Plaintiff mentioned past sexual abuse by a kindergarten teacher. (Id.)
On December 30, 2008, Plaintiff reported to Dr. Jones that she was being compliant
with the medication, and that “her mood is doing well.” (Tr. 432.) On January 5, 2009,
Dr. Ganchorre noted that Plaintiff was “doing very well,” that her mood was “very much
under control and stable,” and that “[t]he overall response is good.” (Tr. 431.) Because
Plaintiff complained about side effects of the Pristiq, Dr. Ganchorre prescribed Lamictal
in its place.3 (Id.)
On January 15, 2009, Plaintiff told Dr. Jones that her mood varied from anxious
to depressed to irritable, and that she was not sleeping as well as before. (Tr. 429.)
Plaintiff reported that she had not taken her Lamictal in at least a week because she
could not afford it. (Id.) She complained of anxiety and stated that, two weeks prior,
she had suffered panic attacks. (Id.) On January 26, 2009, Dr. Ganchorre opined that
Plaintiff was “continuing to improve,” noting, “She is still having a little bit more of mood
swings, more on the irritability and anxiety, but otherwise she is much improved.” (Tr.
428.) Dr. Ganchorre instructed Plaintiff to continue her titration of Lamictal, and to
increase the dosage gradually over the subsequent weeks. (Id.)
During a March 4, 2009 session with Dr. Jones, Plaintiff reported having panic
attacks every other day for the preceding two weeks, feeling anxious and isolating
herself. (Tr. 427.) She described her mood as “distant” and stated that she had crying
spells about once each day. (Id.) She told Dr. Jones that she had stopped taking the
3
The records of Drs. Ganchorre and Jones refer to this medication using both
its brand name, Lamictral, and its generic name, lamotrigine. See
Physicians’ Desk Reference 1522 (PDR Network, LLC, 64th ed. 2010).
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Lamictal because she could not afford it, and intended to ask Dr. Ganchorre to
prescribe a generic medication at her next appointment. (Id.) After a March 10, 2009
session, Dr. Ganchorre noted that Plaintiff had interrupted her treatment with Lamictal,
and that Plaintiff “noticed a big difference in her depression” during the two-week period
that she was not taking it. (Tr. 426.) Dr. Ganchorre characterized Plaintiff’s response
to the Lamictal as “good and promising” when she was taking a full dose of the
medication, and restarted Plaintiff on Lamictal. (Id.)
After a May 5, 2009 session, Dr. Ganchorre described Plaintiff’s response to the
medication as “good,” and characterized Plaintiff’s mood as “quite elevated, but not
manic, and . . . less labile.” (Tr. 424.) Plaintiff reported having less hysterical fugues.
(Id.) On May13, 2009, Dr. Jones noted that Plaintiff “has been more accepting of her
condition,” and continued to have “situations in which she ends up not knowing where
she is going and dissociative episodes.” (Tr. 425.) Dr. Jones described Plaintiff as
“very cooperative and pleasant during the session.” (Id.)
On July 7, 2009, Plaintiff reported to Dr. Jones that she had experienced three
panic attacks in the preceding three weeks, as well as crying spells and a sense of
dread. (Tr. 423) Dr. Jones described Plaintiff as “very cooperative, pleasant, and
somewhat passive, but responsive in the interview.” (Id.) After a July 28, 2009 session,
Dr. Ganchorre reported that, after having shown improvement, Plaintiff was depressed
again, and reported an increase in her panic attacks. (Tr. 422.) Dr. Ganchorre
reviewed Plaintiff’s medications, and added alprazolam to treat Plaintiff’s panic attacks.
(Id.)
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In September 2009, Dr. Ganchorre noted that Plaintiff was “status quo,” that she
was still experiencing disassociation, but “in much less degree and much lesser
frequency,” and that her therapy with Dr. Jones was going “very well.” (Tr. 418.)
Ganchorre observed that Plaintiff’s mood had stabilized with the use of Seroquel and
Lamictal, and that “all in all, [Plaintiff] is very happy and doing well.” (Id.)
In January 2010, Dr. Ganchorre completed a Psychiatric/Psychological
Impairment Questionnaire. (Tr. 473-80.) She diagnosed Plaintiff with severe
depression and PTSD. (Tr. 473.) Dr. Ganchorre listed the following as positive clinical
findings that demonstrated and supported her diagnosis: poor memory, appetite
disturbance with weight change, sleep disturbance (noting, “without meds”), personality
change (noting, “withdrawn”), mood disturbance (noting, “depression”), emotional
lability, recurrent panic attacks, anhedonia or pervasive loss of interests, feelings of
guilt/worthlessness, difficulty thinking or concentrating, social withdrawal or isolation,
decreased energy, obsessions or compulsions (noting, “counting”), intrusive
recollections of a traumatic experience, persistent irrational fears and generalized
persistent anxiety. (Tr. 474.) Dr. Ganchorre noted the following as other clinical signs
or comments: “Dissociative episodes, loses track of time, PTSD symptoms include
nightmares, flashbacks to childhood [illegible], other adult life issues, loss of daughter at
29 y.o.” (Id.)
Dr. Ganchorre opined that Plaintiff was markedly limited (defined as “effectively
precludes the individual from performing the activity in a meaningful manner”) in the
following areas: (1) under the heading “Understanding and Memory,” the ability to
remember locations and work-like procedures, the ability to understand and remember
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one or two step instructions, and the ability to understand and remember detailed
instructions; (2) under the heading “Sustained Concentration and Persistence,” the
ability to carry out detailed instructions, the ability to maintain attention and
concentration for extended periods, the ability to perform activities within a schedule,
maintain regular attendance and be punctual within customary tolerance, the ability to
sustain ordinary routine without supervision, the ability to work in coordination with or
proximity to others without being distracted by them, the ability to make simple workrelated decisions, and the ability to complete a normal workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; (3) under the heading “Social
Interactions,” the ability to accept instructions and respond appropriately to criticism
from supervisors, the ability to get along with co-workers or peers without distrcting
them or exhibiting behavioral extremes, and the ability to maintain socially appropriate
behavior and to adhere to basic standards of neatness and cleanliness; and (4) under
the heading “Adaptation,” the ability to travel to unfamiliar places or use public
transportation, and the ability to set realistic goals or make plans independently. (Tr.
475-78.)
2.
Agency Assessments
In April 2009, psychologist J. Joseph Konieczny, Ph.D., examined Plaintiff at the
request of the Bureau of Disability Determination. (Tr. 360-66.) His evaluation was
based on a clinical interview of Plaintiff and an administration of the Weschler Adult
Intelligence Scale-IV. (Tr. 360.) Dr. Konieczny reported that Plaintiff “has never been
involved in the problematic use of alcohol or other drugs.” (Tr. 361.) He diagnosed her
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with depressive disorder, not otherwise specified. (Tr. 364.) However, Dr. Konieczny
opined that, given Plaintiff’s reported history of panic attacks and PTSD, possible
diagnoses of panic disorder with agoraphobia and PTSD merited consideration, noting
that “further reliable background information and history” would be helpful with respect
to those potential diagnoses. (Id.) Dr. Konieczny concluded that Plaintiff showed no
indications of impairment in her ability to concentrate, to attend to tasks, and to
understand and follow directions. (Tr. 364) He determined that she showed moderate
impairments in her ability to withstand stress and pressure, to relate to others, and to
deal with the general public. (Id.) According to Dr. Konieczny, Plaintiff showed no
deficits in her “awareness of rules of social and conformity” and demonstrated “mild
deficits” in her overall level of judgment. (Id.)
In May 2009, state agency psychologist Bonnie Katz, Ph.D., reviewed Plaintiff’s
medical records and Dr. Konieczny’s report, and concluded, with respect to the same
categories subsequently considered by Dr. Ganchorre in her January 2010
questionnaire, that Plaintiff was markedly limited only in her ability to interact
appropriately with the general public. (Tr. 379.) Dr. Katz noted that Plaintiff had denied
any history of drug abuse during her examination with Dr. Konieczny. (Tr. 381.) Dr.
Katz diagnosed Plaintiff with panic disorder with agoraphobia. (Tr. 387.) In January
2010, state agency psychologist Alice Chambly, Psy. D., reviewed Plaintiff’s file and
affirmed Dr. Konieczny’s May 2009 assessment. (Tr. 472.)
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C.
Hearing Testimony
1.
Plaintiff’s Hearing Testimony
Plaintiff testified at her hearing as follows: Plaintiff lived in a house with her
husband, although she and her husband did not get along or interact. (Tr. 35.) She
had an associates degree in computer information systems, as well as numerous
certifications in information technology. (Tr. 38.) She suffered a disassociation
disorder; that is, she suffered episodes where she lost awareness of time and had no
memory of periods of time. (Tr. 47.) These episodes occurred weekly. (Tr. 47.) Her
doctors associated the problem with post-traumatic stress. (Tr. 49.) She had a driver’s
license but she had not driven in two years because she had, on various occasions, lost
awareness of her surroundings or destination while driving. (TR. 36.) One on
occasion, she drove from Cleveland to Toledo without realizing it, and on another she
hit and severely injured another person. (Tr. 37.)
Plaintiff lacked concentration and memory. (Tr. 5.4) She suffered nightmares
every night. (Tr. 50.) She could not sleep unless she took Seroquel, and she averaged
only three hours of sleep at night. (Tr. 56.) Consequently, she was fatigued during the
day. (Tr. 56.) Plaintiff suffered depression; she cried often, lost contact with people
(including her family), avoided “calls,” and suffered panic attacks. (Tr. 51-52.) Since
she began taking new medication, she suffered panic attacks every other day; and the
panic attacks lasted for approximately five hours at a time. (Tr. 52.) She was
embarrassed by her panic attacks and she avoided situations that might trigger them
and in which people might see her. (Tr. 52-53.)
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Plaintiff could sit for 15 to 20 minutes before she needed to stand and move.
(Tr. 58.) She could not stand still, but needed to move; she paced for a total of a
couple hours a day. (Tr. 57-58.) In order to go grocery shopping, she had her friend
take her to the store after midnight when there were no people in the store. (Tr. 62.)
She had a computer at home, but she could not use it because she could not
remember what she read. (Tr. 63.) She did not participate in any groups or
organizations, and she did not leave the house for social occasions. (Tr. 62.)
In response to questions from the ALJ, Plaintiff testified that she had undergone
treatment for Percocet addiction at the Betty Ford Center. (Tr. 63, 65.) She could not
recall when or for how long she was treated there. (Tr. 64.)
2.
Vocational Expert’s Hearing Testimony
The ALJ posed the following hypothetical to the VE:
Assume a hypothetical individual of the claimant’s age, education
and work experience, who’s limited to the full range of exertionally
light work. This hypothetical individual is relegated to the
performance of simple, routine, repetitive tasks where he or she
would . . . experience only occasional changes in the work setting.
This person would have no interaction with the general public, but
occasional interaction with coworkers.
(Tr. 75.) The VE opined that the hypothetical individual described by the ALJ would not
be able to perform any of Plaintiff’s past work, but could perform work as a semiautomatic sewing machine operator, an office helper, or a duplicate machine operator.
(Tr. 75-76.) The VE testified that an individual who experienced periods of “black out”
once a day for an undetermined amount of time would be precluded from performing
Plaintiffs’ past work, and from performing any other work available in the national
economy. (Tr. 77-78.) Finally, the VE stated that an individual who was “off task 20 to
11
25 percent of the time” on a daily basis would be unable to sustain full time employment
in any of the positions he had named in response to the ALJ’s hypothetical. (Tr. 79-80.)
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate
that she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
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416.920(d). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent her from doing her past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.
2.
The claimant has not engaged in substantial gainful activity since
November 30, 2007, the alleged onset date.
3.
The claimant has the following severe impairments: back strain;
depression; anxiety; and post-traumatic stress disorder.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5.
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work . . . except she is limited to simple, routine and repetitive tasks,
in an environment where only occasional changes take place in the
work setting, and where she would have only occasional interaction
with coworkers. Finally, the claimant should avoid all interaction with
the general public.
6.
The claimant is unable to perform any past relevant work.
.....
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant could have
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perform.
11.
The claimant has not been under a disability, as defined in the Social
Security Act, at any time from November 30, 2007, through the date
of this decision.
(Tr. 15-24.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
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substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.
Plaintiff’s Assignments of Error
Although presented separately and addressing different aspects of the ALJ’s
decision, Plaintiff’s assignments of error all take issue, in some way, with the ALJ’s
consideration of Dr. Gonchorre’s opinion and assessment of Plaintiff’s credibility.
Accordingly, it is necessary to resolve those issues before proceeding to Plaintiff’s
remaining assignments of error.
1.
The ALJ’s Assessments of Dr. Ganchorre’s Opinions
An ALJ must give the opinion of a treating source controlling weight if he finds
the opinion well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with the other substantial evidence in the case record.
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §
404.1527(d)(2)) (internal quotes omitted). Conversely, a treating source’s opinion may
be given little weight if it is unsupported by sufficient clinical findings and is inconsistent
with the rest of the evidence. Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993).
If an ALJ decides to give a treating source’s opinion less than controlling weight, he
must give “good reasons” for doing so that are sufficiently specific to make clear to any
subsequent reviewers the weight given to the treating physician’s opinion and the
reasons for that weight. See Wilson, 378 F.3d at 544 (quoting S.S.R. 96-2p, 1996 WL
374188, at *5 (S.S.A.)).
Here, the ALJ gave no weight to the medical source statements of Dr.
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Ganchorre, concluding that her assessment of Plaintiff’s limitations was inconsistent
with notations in the records of her sessions with Plaintiff.4 (Tr. 22.) Specifically, the
ALJ pointed to Dr. Ganchorre’s notations in the medical records that Plaintiff’s therapy
was going “very well,” that Plaintiff’s mood was stabilized by her medications, that
Plaintiff was “very happy with what was going on,” and that, eventually, Dr. Ganchorre
did not need to see Plaintiff for three months. (Id.) According to the ALJ, “[t]hese
notes, which indicate that the claimant has a stable condition, are inconsistent with Dr.
Ganchorre’s opinion that the claimant is disabled.” (Id.) The ALJ also afforded “some
weight” to the non-examining consultants, but noted that “the overall record” justified the
limitations he assigned in determining Plaintiff’s RFC. (Tr. 22-23.)
Plaintiff argues that substantial evidence does not support the ALJ’s conclusion
that Dr. Ganchorre’s opinions were not entitled to controlling weight. She contends that
the notations identified by the ALJ as inconsistent with Dr. Ganchorre’s opinion
regarding Plaintiff’s limitations were not related to her ability to perform work, and that
Dr. Ganchorre’s conclusions in the January 2010 questionnaire were supported by her
observations of Plaintiffs various psychiatric abnormalities. According to Plaintiff,
because the ALJ erred in failing to give controlling weight to Dr. Ganchorre’s opinions, it
follows that his conclusion regarding her RFC is also not supported by substantial
evidence. The Commissioner argues that, contrary to Dr. Ganchorre’s opinions in the
January 2010 questionnaire, the records reflect that Plaintiff was improving over time
4
Initially, the ALJ indicated that he accorded “some weight:” to Dr.
Ganchorre’s opinion, but ultimately declined to give any weight to her opinion.
(Tr. 22.)
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and with medication, and that, because Ganchorre’s opinions in the questionnaire were
conclusory and unsupported by laboratory or diagnostic tests, they were unreliable.
Plaintiff’s arguments on this issue are not well taken. Although Dr. Ganchorre’s
statements regarding Plaintiff’s improvement were relative and unrelated to Plaintiff’s
functional limitations, substantial evidence in the record supports the ALJ’s conclusion
that Dr. Ganchorre’s opinion was not entitled to any weight. For example, the ALJ
repeatedly pointed to Dr. Konieczny’s observations and conclusions regarding Plaintiff’s
capabilities, including that Plaintiff was “oriented for person, place and time” (Tr. 18);
showed no impairment in her ability to concentrate and attend to tasks (Id.), to
understand and follow directions, to control her temper (Tr. 21), or to understand “rules
of social judgment and conformity” (Id.); showed no indications of nervousness and
anxiety (Id.); and showed no signs of undue impulsivity (Id.). Further, the ALJ relied on
his observation of Plaintiff during the hearing, noting that she “demonstrated the ability
to cooperate and show respect” and “[p]resented in a very coherent manner and was
responsive to all questions posed during the hearing.” (Tr. 18.) See Beavers v. Sec’y
of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (“The opportunity to
observe the demeanor of a witness, evaluating what is said in the light of how it is said,
and considering how it fits with the rest of the evidence gathered before the person who
is conducting the hearing, is invaluable, and should not be discarded lightly.”) Finally,
the ALJ pointed to Dr. Ganchorre’s notations that Plaintiff was stabilizing and improving
with treatment, and that, at one point, she did not need to see Plaintiff for three months.
(Tr. 22.) Accordingly, as the ALJ noted, “the overall record” supports the conclusion
that Dr. Ganchorre’s opinion was not entitled to any weight.
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Plaintiff argues that, even if Dr. Ganchorre’s opinion is not entitled to controlling
weight, the ALJ erred by summarily rejecting her opinion without properly considering
the appropriate weight to accord it. However, the opinion reflects that the ALJ
considered Dr. Ganchorre’s observations of Plaintiff’s progress, the consistency of her
opinion with the record as a whole, and the supportability of the opinion. See 20 C.F.R.
§ 404.1527(c)(2)-(5) (requiring an ALJ to consider certain factors when determining the
weight to accord to a medical opinion). Furthermore, and most crucially, as discussed
above, the ALJ provided “good reasons” for declining to afford controlling weight to Dr.
Ganchorre’s opinion, such that the basis for his conclusion was apparent from the
decision. See Wilson, 378 F.3d at 544 (Noting that the “requirement of reason-giving
exists, in part, to let claimants understand the disposition of their cases” and to allow for
meaningful review of the ALJ’s decision) (internal quotation marks omitted).
2.
The ALJ’s Assessment of Plaintiff’s Credibility
Credibility determinations regarding a claimant’s subjective complaints rest with
the ALJ, are entitled to considerable deference, and should not be discarded lightly.
See Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987);
Villarreal v. Sec’y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987).
However, the ALJ’s credibility determinations must be reasonable and based on
evidence from the record. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th
Cir. 2007); Weaver v. Sec’y of Health & Human Servs., 722 F.2d 313, 312 (6th Cir.
1983). The ALJ also must provide an adequate explanation for his credibility
determination. “It is not sufficient to make a conclusory statement ‘that an individual’s
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allegations have been considered’ or that ‘the allegations are (or are not) credible.’”
S.S.R. 96-7p, 1996 WL 374186 at *4 (S.S.A.). Rather, the determination “must contain
specific reasons for the finding on credibility, supported by evidence in the case record,
and must be sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reason
for that weight.” Id.
Here, the ALJ determined that Plaintiff was not credible because she was not
forthcoming regarding her history of prescription drug abuse. (Tr. 22.) Specifically, the
ALJ noted that Plaintiff did not report her past prescription drug abuse to Dr. Konieczny,
and that, during her hearing testimony, she failed to acknowledge her substance abuse
history until she was directly asked about it by the ALJ. (Id.) Plaintiff argues that the
ALJ’s credibility assessment is not supported by substantial evidence in the record.
Specifically, Plaintiff argues that her failure to disclose her past substance abuse to Dr.
Konieczny was not suspicious because she did not relate prescription drug abuse to
illegal drugs, and because the substance abuse occurred prior to her disability. She
also notes that there was no reason for her to disclose her past substance abuse during
her hearing testimony until the ALJ asked her about it and, when she was questioned
about it, she testified truthfully. The Commissioner asserts that substantial evidence
supports the credibility finding.5
5
Plaintiff also argues that the ALJ erred in finding her not credible based on
inconsistencies between her testimony regarding her condition and
capabilities and the ALJ’s conclusion regarding Plaintiff’s RFC. The
Commissioner responds by arguing that the ALJ appropriately based his
credibility finding on inconsistencies between medical record evidence
regarding the extent of Plaintiff’s impairments and her testimony on that
19
The ALJ’s reliance on Plaintiff’s failure to disclose her past substance abuse to
Dr. Konieczny is based on evidence in the record, as Dr. Konieczny’s report indicates
that Plaintiff denied ever having been involved in “the problematic use of alcohol or
other drugs.” (Tr. 361.) This is, of course, inconsistent with other record evidence –
including Plaintiff’s testimony – that she received treatment for Percocet addiction at
some unknown time. This inconsistency is an appropriate basis for an adverse
credibility finding. See Walters v. Comm’r of Social Sec., 127 F.3d 525, 531 (6th Cir.
1997) (“Discounting credibility . . . is appropriate where an ALJ finds contradictions
among the medical reports, claimant’s testimony, and other evidence.”). Further,
although Plaintiff now attempts to explain why her statement to Dr. Konieczny is not
actually inconsistent with the record, it is not for this Court to consider Plaintiff’s posthoc justification for the inconsistency. See Brainard, 889 F.2d at 681 (“The scope of
our review is limited to an examination of the record only. We do not review the
evidence de novo, make credibility determinations nor weigh the evidence.”).
The transcript of Plaintiff’s hearing testimony reveals that, prior to the ALJ’s
questioning on the issue, there was no reason for her to disclose her past abuse of
issue. However, review of the ALJ’s decision reveals that the ALJ did not
base his credibility finding on any inconsistency between Plaintiff’s testimony
and either the RFC or the medical evidence in the record. Rather, the ALJ’s
discussion of Plaintiff’s credibility was confined to a single paragraph, and
based solely on Plaintiff’s lack of candor regarding her prescription drug
abuse. In a paragraph several pages prior to the ALJ’s discussion of
Plaintiff’s credibility, the ALJ concluded that Plaintiff’s testimony was “not
credible to the extent they are inconsistent with the above residual functional
capacity assessment.” (Tr. 20.) He did not, however, find her not credible
because her testimony contradicted that RFC. Accordingly, the ALJ did not
base his credibility determination on any testimony or evidence other than
Plaintiff’s failure to disclose her past substance abuse.
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prescription drugs. She was not asked about any past history of drug or other
substance abuse until the ALJ mentioned evidence in the record related to her
treatment at the Betty Ford Clinic. (Tr. 63-66.) When asked about the issue, she
responded to the ALJ’s questions in a manner consistent with the other record
evidence. (Id.) Standing alone, this basis for finding Plaintiff not credible would
perhaps be insufficient. However, coupled with the basis discussed above, and given
the deference accorded to the ALJ’s conclusions on this issue, substantial evidence
supports the ALJ’s adverse credibility finding, and Plaintiff’s arguments on this point are
not well taken.
3.
Whether Plaintiff Was Per Se Disabled
Plaintiff argues that the ALJ erred in determining, at the third step of his analysis,
that she was not per se disabled under either Medical Listing 12.04 or 12.06 (20 C.F.R.
Pt. 404, Subpt. P, App. 1). The ALJ’s opinion reflects that the ALJ did not rely on Dr.
Ganchorre’s opinion in determining that Plaintiff was not per se disabled. This is likely
because he declined to accord that opinion any weight. Accordingly, to some extent,
the Plaintiff’s arguments on this point reiterate her challenge to the ALJ’s decision to
reject Dr. Ganchorre’s opinion, and, for the reasons discussed above, are not well
taken.
Further, substantial evidence supports the ALJ’s conclusion that Plaintiff was not
per se disabled under either Medical Listing 12.04 or 12.06. These listings set forth the
criteria for affective disorders and anxiety-related disorders, respectively. Both listings
at issue require a claimant to satisfy two sets of criteria, labeled A and B. Id. The
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criteria in set A are not at issue here, as the ALJ considered only the criteria in set B.
(Tr. 18-19). The criteria in set B are identical for each of the two listings, and require
that the claimant’s condition result in marked restrictions in at least two of the following
categories: activities of daily living; maintaining social functioning; and maintaining
concentration, persistence or pace. Id.
The ALJ determined that Plaintiff did not satisfy the criteria for either 12.04 or
12.06 because she showed only a mild restriction in activities of daily living, and only
moderate restrictions in the remaining categories. (Tr. 18-19.) The ALJ relied on Dr.
Konieczny’s assessment of Plaintiff’s capabilities (Id.), which concluded that Plaintiff
showed no indications of impairment in her ability to concentrate, attend to tasks, and
understand and follow directions, and only moderate impairments in her ability to
withstand stress and pressure, to relate to others, and to deal with the general public
(Tr. 364.). The ALJ also pointed to Plaintiff’s demeanor and testimony at the hearing.
(Tr. 18.) Accordingly, substantial evidence supports the ALJ’s conclusion that Plaintiff
did not satisfy the set B criteria in either of the relevant medical listings.
4.
Whether The VE Relied On A Flawed Hypothetical
Plaintiff argues that, because the ALJ’s error in assigning no weight to Dr.
Gancorre’s opinion resulted in a flawed RFC, the ALJ’s hypothetical to the VE was also
flawed. The Commissioner argues that the ALJ’s hypothetical accurately reflected the
RFC, which was based on substantial evidence in the record.6 Because, as discussed
6
In responding to Plaintiff’s arguments on this point, the Commissioner relies,
in part, on grounds not considered by the ALJ. For example, the
Commissioner points to Plaintiff’s contention that her mental impairments
have interfered with her ability to work since 1974, and notes evidence that
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above, substantial evidence supports the ALJ’s decision not to accord Dr. Ganchorre’s
opinion any weight, Plaintiff’s arguments on this point are not well taken.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: September 4, 2012
Plaintiff continued to work past her alleged disability onset date, as well as
Plaintiff’s testimony that she has never been fired or laid off from a job due to
problems getting along with other people to argue that substantial evidence
supports the ALJ’s conclusion with respect to Plaintiff’s social functioning. It
is well settled, however, that “‘an agency's action must be upheld, if at all, on
the basis articulated by the agency itself.’” Berryhill v. Shalala, 4 F.3d 993, *6
(6th Cir. Sept. 16, 1993) (unpublished opinion) (quoting Motor Vehicle Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (citation
omitted)). Accordingly, this Court “may not accept appellate counsel's post
hoc rationalizations for agency action.” Id. (internal quotation marks omitted).
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