Tolbert v. Commissioner of Social Security

Filing 19

Memorandum Opinion and Order that the Court affirms the decision of the Commissioner (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 3/18/2014. (S,G)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TIFFANY TOLBERT,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:13 CV 811

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Tiffany Tolbert under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and
procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and

1

ECF # 15. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 10.

4

ECF # 11.

5

ECF # 5.

6

ECF # 12.

7

ECF # 16 (Commissioner’s brief); ECF # 14 (Tolbert’s brief).

8

ECF # 16-1 (Commissioner’s charts); ECF # 14 at 7-10 (Tolbert’s charts).

the fact sheet.9 Although the matter was initially set for a telephonic oral argument, it has
been determined that the case can be adjudicated on the existing record.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Tolbert, who was 26 years old at the time of the administrative hearing, has a limited

education and no relevant past work.11 She lives with her four children (ages one to seven at
the time).12
The ALJ, whose decision became the final decision of the Commissioner, found that
Tolbert had the following severe impairments: depressive disorder, anxiety disorder, and
headaches.13
After concluding that the relevant impairments did not meet or equal a listing,14 the
ALJ made the following finding regarding Tolbert’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) with the following additional
limitations: simple routine tasks with simple, short instructions, can make
simple work-relate [sic] decisions, with few workplace changes, cannot
9

ECF # 14 at 1-2 (Tolbert’s fact sheet).

10

See, ECF ## 17, 18.

11

ECF # 11, Transcript of Proceedings (“Tr.”) at 25-26.

12

Id. at 326.

13

Id. at 18.

14

Id. at 20.
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perform at a production rate pace, and can have superficial contact with
coworkers, supervisors, and the public, meaning no negotiation, arbitration, or
confrontation15
In arriving at this RFC finding, the ALJ found that, although Tolbert’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms, he
did not find Tolbert’s claims as to symptom severity to be credible.16 Specifically, he noted
that Tolbert was inconsistent in what she reported to David House, Ph.D., a consulting
examining psychologist, and thus the ALJ gave only “some weight” to his opinions on
functional limitations.17
Based on an answer to a hypothetical question posed to the vocational expert (“VE”)
at the hearing setting forth the RFC finding quoted above, the ALJ determined that a
significant number of jobs exist regionally and nationally that Tolbert could perform.18 The
ALJ, therefore, found Tolbert not under a disability.19
B.

Issues on judicial review
Tolbert asks for reversal of the Commissioner’s decision on the ground that it does

not have the support of substantial evidence in the administrative record. Specifically,
Tolbert asserts three errors for purposes of judicial review:

15

Id. at 21.

16

Id. at 22-25.

17

Id. at 24-25.

18

Id. at 26.

19

Id.
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•

The ALJ’s RFC finding is contrary to law because it fails to apply
20 CFR § 404.1527(d);20

•

The RFC finding is not supported by substantial evidence because it
does not follow the report of the only psychologist to examine
Tolbert;21

•

The hypothetical question to the VE did not comprehensively and
accurately portray Tolbert’s mental limitations, and so the VE’s answer
cannot be substantial evidence of no disability.22

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.

Analysis
A.

Standard of review - substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”

20

ECF # 14 at 3.

21

Id.

22

Id. at4.
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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 the fear of court interference.23
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.24 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.25
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of standard
This case essentially turns on whether the ALJ properly considered the opinion of

Dr. House, a consulting examining source, and then correctly articulated the weight ascribed
to that opinion.
First, I observe that Dr. House was not a treating source whose opinion is essentially
given a rebuttable presumption of controlling weight by the administrative regulations.26
Because of that presumption, it is well-established that opinions of treating sources may not

23

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

24

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
25

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

26

See, Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013)
(citations omitted).
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be discounted to something less than controlling weight without good reasons given.27 This
procedural rule of requiring a clear statement of good reasons for ascribing less than
controlling weight to an opinion of a treating source lets claimants understand why the
opinion of their treating physician was not followed by the ALJ, “ensures that the ALJ
applies the treating physician rule and permits meaningful review of the ALJ’s application
of the rule.”28 Violations of this good reasons requirement of the treating source rule are
particularly held to be grounds for remand – unless a recognized harmless error exception
applies – as they deprive the claimant of due process.29
But, an “ALJ need not give reasons for discounting an examining source’s opinion”
because such an opinion was never presumptively entitled to any such controlling weight in
the first instance.30 Indeed the Sixth Circuit has recently re-emphasized that where, as here,
the opinion under review is from “an examining psychologist – not a treating doctor – his
opinion is not entitled to any special deference.”31 Rather, the opinions of non-treating
sources are never presumed to have controlling weight, but are assigned weight based on the

27

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citation

omitted).
28

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

29

Id. at 544-45

30

Brooks, 531 F. App’x at 643 (citing Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514
(6th Cir. 2011)).
31

Peterson v. Comm. of Soc. Sec., __ F. App’x __, 2014 WL 223655, at *6 (6th Cir.
Jan. 21, 2014) (citation omitted).
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various factors in the regulations, such as “the examining relationship (or lack thereof),
specialization, consistency and supportability.”32
Here, Tolbert seems to assume that Dr. House is a treating source such that the ALJ
was required to first determine whether Dr. House’s opinion should be given controlling
weight, then support that decision with a statement of good reasons, and finally proceed to
a determination of what lesser weight to give.33 In fact, as noted above, such an analysis is
only required where the opinion is from a treating source and so would not be required here.34
Moreover, it is not necessarily improper to credit the opinion of a reviewing source
over that of an examining source. As the Sixth Circuit noted in Rogers v. Commissioner of
Social Security, an opinion from a later reviewing source that has the benefit of the complete
case record may be entitled to greater weight than that of an earlier examiner who conducted
a single examination.35 In fact, as was recognized in Gayheart v. Commissioner of Social
Security, this preference for the opinion of a reviewing source over that of an examining one
may be particularly valid in cases, like here, of psychological impairments.36
32

Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)).

33

This sequential analysis is the basic good reasons requirement of the treating source
rule as re-stated by the Sixth Circuit in Gayheart, 710 F.3d 365.
34

The cases cited by Tolbert (ECF # 14 at 3) to support the argument that the ALJ
failed to adequately articulate the reasons for the weight given to Dr. House’s opinion –
Hensley v. Astrue, 573 F.3d 263 (6th Cir. 2009), and Blakley v. Comm’r of Soc. Sec., 581
F.3d 399 (6th Cir. 2009) – both deal with treating source opinions, not examining source
opinions, and are thus inapposite.
35

Rogers, 486 F.3d at 245 n.4 (citing SSR 96-6p).

36

Gayheart, 710 F.3d at 379-80 (citing SSR 96-6p).
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Here, the ALJ discussed the findings of Dr. House in some detail. She noted first his
conclusions as to Tolbert’s functional limitations (moderate limitations in concentration,
persistence, and pace; marked limitation in ability to withstand stress and pressure; mild
limitations in adaptability and ability to deal with the public, co-workers and supervisors).37
She then found that these limitations were entitled to “some” weight because they are
“somewhat supported” by the “objective signs and findings” Dr. House noted on examining
Tolbert and because Tolbert was inconsistent in what she told Dr. House and what appears
elsewhere in the record.38
By contrast, the ALJ gave “considerable weight” to the functional limitation findings
of the state evaluating sources, which found Tolbert’s mental impairments produced mild
restrictions on daily living, moderate difficulties with social functioning, and moderate
difficulties with maintaining concentration, persistence, and pace.39 The ALJ made a specific
point to note that the particular limitations in the RFC concerning simple routine tasks, short
instructions, without working at a production rate pace, were to “account for the claimant’s
‘moderate’ difficulties in maintaining concentration, persistence, or pace, as well as
maintaining social functioning, which are discussed in great detail above.”40

37

Tr. at 24.

38

Id.

39

Id. at 19.

40

Id. at 23.
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Given that the ALJ was not required here to conform to the good reasons requirement
of the treating physicians rule in dealing with the opinion of Dr. House, it is clear that
articulation of reasons for giving Dr. House’s opinion only some weight is adequate. In that
regard, I note that the ALJ’s citation of inconsistencies in Tolbert’s statements as a reason
for giving lesser weight to Dr. House’s opinion mirrors the reasons given by reviewing
psychologist Vicki Warren, M.D., for ascribing less weight to Dr. House’s opinion.41 As
such, this ability to evaluate the entire record and observe factors that could not be seen in
a single examination is precisely why opinions from reviewing sources are permitted to
receive greater weight than an opinion from a one-time examiner. While the ALJ’s opinion
could have benefitted from a clearer, more detailed exposition of this point, the analysis in
the opinion, cited above, does provide for meaningful judicial review of the weight given to
Dr. House’s opinion.
Finally, the limitations in the RFC that Tolbert now contends were unrepresentative
of her actual medical condition were, in fact, largely the limitations set forth by the state
reviewing psychologist. As noted above, the ALJ expressly noted that she tailored the mental
restrictions to conform to limitations recognized by the reviewing source, and further gave
a basis for finding that these limitations were more supported by the record evidence than
were those set forth by Dr. House. The fact that, under the circumstances described here,
these limitations were not identical to those outlined by Dr. House is not error.

41

See, Tr. at 105.
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Conclusion
For the reasons stated above, substantial evidence supports the finding of the
Commissioner that Tolbert had no disability. Accordingly, the decision of the Commissioner
denying Tolbert disability insurance benefits and supplemental security income is affirmed.
IT IS SO ORDERED.

Dated: March 18, 2014

s/ William H. Baughman, Jr.
United States Magistrate Judge

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