Gresham v. Commissioner of Social Security Administration
Filing
18
Memorandum Opinion and Order: The Court REVERSES and REMANDS the Commissioner's decision for further proceedings consistent with this Opinion and Order. Magistrate Judge Kathleen B. Burke on 7/30/2014. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES GRESHAM,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
CASE NO. 1:13-cv-01178
MAGISTRATE JUDGE
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff James Gresham (“Plaintiff” or “Gresham”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”),
denying his applications for social security disability benefits. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to
the consent of the parties. Doc. 12. Because the Administrative Law Judge (“ALJ”) failed even
to consider one of the two opinions rendered by Gresham’s treating psychiatrist, this Court
cannot conduct a meaningful review of the Commissioner’s decision and is unable to conclude
that the Commissioner’s decision is supported by substantial evidence. Accordingly, the Court
REVERSES and REMANDS the Commissioner’s decision for further proceedings consistent
with this Memorandum Opinion and Order.
I. Procedural History
Gresham filed applications for Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”) on August 25, 2010. 1 Tr. 11, 64-65, 91-92, 186-197. He alleged a
1
The ALJ found that Gresham filed for disability benefits on August 25, 2010. Tr. 11. This finding is supported by
the record. Tr. 64-65, 91-92. Gresham indicates that he filed on August 31, 2010 (Doc. 15, pp. 1); this date is also
1
disability onset date of December 31, 2009 (Tr. 186, 190, 219), and claimed disability due to
post-traumatic stress disorder (“PTSD”), personality disorder, and low back pain. Tr. 121, 125,
132, 134, 223. After initial denial by the Social Security Administration (Tr. 121-27), and denial
upon reconsideration (Tr. 132-36), Gresham filed a request for a hearing (Tr. 137-38) and
attended a hearing before ALJ Patrick J. Rhoa on February 17, 2012 (Tr. 26-63).
In his April 30, 2012 decision, ALJ Rhoa determined that Gresham had not been under a
disability from December 31, 2009, through the date of the decision. Tr. 8-25. Gresham
requested review of the ALJ’s decision by the Appeals Council. Tr. 7. On March 27, 2013, the
Appeals Council denied the request, making the ALJ’s decision the final decision of the
Commissioner. Tr. 1-7.
II. Evidence
A.
Personal, educational and vocational evidence
Gresham was born in 1957. Tr. 32. He obtained a GED during military service and a
license for private security after concluding his military service. 2 Tr. 34. Gresham’s past
relevant work includes work as a security guard and a security guard supervisor. Tr. 35-40.
Gresham lives alone in an apartment provided through the VA. Tr. 32.
supported by the record (Tr. 186-97). Gresham does not raise a specific objection to the ALJ’s finding with respect
to the filing date.
2
Gresham was in the Army from 1977-1984, the National Guard from 1984-1986, the Army Reserves from 19862003, and on active duty from 2003-2006. Tr. 35, 295-96, 754.
2
B.
Medical evidence 3
After being discharged from the military in 2004 Gresham was treated mainly by doctors
through the VA. Gresham’s treating psychiatrist through the VA was Dr. Jane Domb. In
addition to treating him, she offered opinions on his ability to work. 4
1.
Treatment History
Gresham was diagnosed with PTSD in 2005 while serving in the military. 5 Tr. 708, 752.
Gresham attributes his PTSD to the traumatic experiences he encountered while serving in the
military. Tr. 815-16. Gresham complained to a neurologist in early 2009 of sleep problems due
to combat-related nightmares. Tr. 324-30. In April 2009, neurologist Dr. Mark Walker
prescribed Prazosin to Gresham for combat-related nightmares. Tr. 330. After being violently
robbed in August of 2009, Gresham was hospitalized and reported suicidal thoughts and
depression. Tr. 586-589. Gresham was admitted to inpatient addiction treatment for cocaine
dependency in September 2009 and then discharged for outpatient treatment in October. Tr.
295-96. Dr. Indiradevi Vellanki diagnosed Gresham with alcohol and cocaine dependence,
substance induced mood disorder, anti-social personality traits, and PTSD. Tr. 295-96. On a
number of occasions, Gresham admitted to owning two handguns and two knives, and he stated
that he had been sleeping with the knives since he returned from Iraq. Tr. 298, 454, 480, 564.
In early 2010, Gresham reported that, despite sobriety, he experienced worsening
nightmares and aggression. Tr. 678-80. In September 2010 — after being off his medications
3
Treatment history and opinion evidence regarding Gresham’s physical limitations will not be discussed in-depth as
the issues before the Court relate to his mental—not physical—limitations.
4
Dr. Domb’s treatment notes and opinion evidence are set forth more fully below.
5
In March 2009, Gresham was screened for PTSD and the test came back negative. Tr. 340. However, Gresham
continued to be diagnosed with PTSD after March 2009. See Tr. 295, 752, 756, 843.
3
for a month — Gresham complained of nightmares, hypervigilance, flashbacks, and feelings of
anxiety. Tr. 752-73. Psychiatrist Dr. Youssef Mahfoud diagnosed Gresham with PTSD and
depression, confirmed that he was in remission from alcohol and cocaine, and renewed his
prescriptions for sertraline, trazodone, and Prazocin. Tr. 752-756. Dr. Mahfoud also assigned
Gresham a GAF score of 55. 6 Tr. 756. In October 2010, Gresham admitted to isolating himself
because being around other people made him feel on edge. Tr. 741. A social worker evaluated
Gresham and determined that he continued to experience symptoms of PTSD such as anger,
hypervigilance, and isolation, and assigned a GAF score of 55. Tr. 745.
Gresham reported experiencing mood swings and being anxious in February 2011 such
that he would bite his nails until they bled. Tr. 708. He also reported that he did not socialize
any more, stating that he did not like to be around others. Tr. 708. Gresham reported in March
2011 that he believed his medications helped to keep his emotions under control. Tr. 718. In
April 2011, Gresham explained that he had a physical altercation with his son, but that he
believed his medication helped with his anger. Tr. 714, 716. In July 2011, Dr. Domb noted that
Gresham had described a recent incident in which he “sent a guy to the hospital” in an outburst
of anger. Tr. 781. However, Gresham stated that his mood was better with his medications but
he continued to have difficulty sleeping and difficulties with anger. Tr. 781-82. At the
appointment, Dr. Domb increased Gresham’s trazodone prescription to help with his sleep
problems. Tr. 782. In November 2011 Gresham was referred for intensive PTSD treatment for
symptoms of anxiety, difficulty concentrating, nightmares, flashbacks, anger, and isolation. Tr.
843.
6
GAF (Global Assessment of Functioning) considers psychological, social and occupational functioning on a
hypothetical continuum of mental health illnesses. See American Psychiatric Association: Diagnostic & Statistical
Manual of Mental Health Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric
Association, 2000 (“DSM-IV-TR”), at 34. A GAF score between 51 and 60 indicates moderate symptoms or
moderate difficulty in social, occupational, or school functioning. Id.
4
In early 2012 Gresham was still experiencing feelings of irritability, nightmares,
suspiciousness, and anger, and reported that his medications seemed to be less effective. Tr. 861.
Social worker Gary Weinsheimer assigned Gresham a GAF score of 63. 7 Tr. 817-18. In March
2012 Dr. Domb saw Gresham for psychiatric follow up and diagnosed him with PTSD and a
mood disorder. Tr. 860-862. She stated that her treatment plan goals were to prevent Gresham’s
PTSD symptoms, eliminate his explosiveness, and eliminate his nightmares. Tr. 860. Dr. Domb
noted that Gresham had become angry with the ER staff when his mother was hospitalized for 24
hours due to a stomach ulcer. Tr. 861. Further, Gresham told her that, although his medications
had helped him control his anger for some time, “I seem to have gotten used to them.” Tr. 861.
Gresham had been previously assigned a GAF score of 65 in October 2011 by counselor Cynthia
Thomas but, in March 2012, Dr. Domb lowered Gresham’s GAF to 55. Tr. 861. She continued
certain medications and increased Gresham’s sertraline dosage. Tr. 861.
2.
Opinion Evidence
a.
Treating psychiatrist
Jane Domb, M.D.
Dr. Domb, a VA psychiatrist, began treating Gresham in December 2010. Tr. 728. In
2011 8 she completed a Medical Source Statement wherein she rated Gresham’s ability in 21
categories. 9 Tr. 705-06. She rated Gresham’s mental capacity as “poor” in 14 categories; “fair”
7
A GAF score between 61 and 70 indicates “some mild symptoms (e.g., depressed mood and mild insomnia) or
some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful interpersonal relationships.” Id.
8
Gresham states in his brief that Dr. Domb completed a Medical Source Statement in July 2011. Doc. 15, pp. 11.
Defendant however, believes Dr. Domb rendered this opinion in February 2011. Doc. 16, pp. 6. The administrative
record also reflects a February 2011 date. Tr. 25. Looking at the opinion itself, Dr. Domb’s handwriting on the
Medical Source Statement is not entirely clear. Tr. 705-06. However, during Gresham’s July 2011 appointment, Dr.
Domb’s treatment notes reflect that she completed forms for the patient (Tr. 782), suggesting that the 2011 Medical
Source Statement (Tr. 705-06) was completed in July 2011.
9
The rating choices were: “unlimited/very good,” “good,” “fair,” and “poor.” Tr. 705-06.
5
in 6 categories; and “good” in only 1 category. 10 Tr. 705-06. Dr. Domb did not rate any
category as “unlimited/very good.” Tr. 705-06. Dr. Domb supported her assessment with the
fact that Gresham “suffers from PTSD related to Iraqui war experience.” Tr. 706. Dr. Domb
also drafted a letter in March 2012 listing Gresham’s medications, noting that Gresham was
under her care for PTSD, and stating her opinion that he is unable to work. Tr. 858.
b.
Consultative Examiner
Wilfredo Paras, M.D.
Dr. Paras evaluated Gresham in February 2011. Tr. 708-09. Dr. Paras summarized the
history of Gresham’s physical and mental illnesses. Tr. 708. He opined that Gresham suffered
from PTSD, “which may limit his ability to perform work-related mental activities.” Tr. 709.
Dr. Paras also stated, “[h]is general work limitation at this time is light work.” Tr. 709.
c.
State Agency Reviewing
Aracelis Rivera, Psy. D.
On December 22, 2010, Dr. Rivera completed a Psychiatric Review Technique
assessment and Mental Residual Functional Capacity assessment. Tr. 70-75. In the Psychiatric
Review Technique assessment he opined that, even though Gresham’s anxiety and affective
disorders were severe, they did not meet the criteria of a listing. Tr. 70. Furthermore, he rated
Gresham’s restriction of activities of daily living as “mild,” his difficulties in maintaining social
functioning as “moderate,” and his difficulties in maintaining concentration, persistence or pace
as “moderate.” Tr. 70. Gresham had no repeated episodes of decompensation. Tr. 70.
Using a list of 17 categories, Dr. Rivera rated Gresham’s mental residual functional
capacity as “moderately limited” in 3 categories: (1) ability to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances; (2) ability to
10
The categories in which Dr. Domb rated Gresham are set forth in the text below under heading VI. A.
6
complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods; and (3) ability to respond appropriately to changes in the work setting. Tr. 73-74. He
indicated there was “no evidence of limitation” in 8 categories, and found that Gresham was “not
significantly limited” in 6 categories. Tr. 73-74. Dr. Rivera explained that Gresham had let his
medications lapse for 30 days, but otherwise his PTSD symptoms were controlled. Tr. 74. He
further noted that Gresham could perform a wide range of work tasks in a setting that does not
impose meeting strict production quotas. Tr. 74. Dr. Rivera also explained that Gresham could
function in a work setting where changes are infrequent. Tr. 75.
Bruce Goldsmith, Ph. D.
Dr. Bruce Goldsmith, a psychologist, evaluated Gresham in August 2011 and assessed
Gresham’s mental residual functional capacity using a list of 17 categories. Tr. 116-17. Dr.
Goldsmith found that Gresham was “moderately limited” in 6 categories: (1) ability to perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances; (2) ability to complete a normal workday and workweek without interruption from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods; (3) ability to interact appropriately with the general public; (4)
ability to accept instructions and respond appropriately to criticism from supervisors; (5) ability
to get along with coworkers or peers without distracting them or exhibiting behavioral extremes;
and (6) ability to respond appropriately to changes in the work setting. Tr. 116-17. He found
that Gresham was “not significantly limited” in 9 categories. Tr. 116-17. Finally, Dr. Goldsmith
found there was “no evidence of limitation” in the remaining 2 categories. Tr. 116-17.
7
Dr. Goldsmith supported his assessment by stating that Gresham’s PTSD symptoms were
controlled except for the time during which he let his medications lapse. Tr. 117.
Dr.
Goldsmith also explained that Gresham denied experiencing interpersonal problems in the
workplace. Tr. 117. However, he stated that Gresham was socially isolated and had problems
with anger management. Tr. 117. Dr. Goldsmith limited Gresham to “occasional and superficial
interpersonal contact.” Tr. 117. Finally, he explained that Gresham could function in a work
setting where changes were infrequent. Tr. 117.
C.
Testimonial evidence
1.
Gresham’s testimony
Gresham was represented and testified at the administrative hearing. Tr. 26-57. Gresham
indicated that he lives alone in an apartment procured through the VA and HUD. Tr. 32.
Gresham is receiving food stamps and has a clothing voucher from the VA. Tr. 35, 55. His
mother helps him pay bills and buy anything else he needs. Tr. 55. He does not have any health
insurance nor is he receiving worker’s compensation or unemployment benefits. Tr. 35.
Gresham stated that he no longer has a valid driver’s license because he let it expire. Tr. 33.
Gresham quit high school after the 11th grade to join the military, but he received his
GED while he was in the service. Tr. 34. While in the military from 1977 to 1984 Gresham
worked in administration. Tr. 35. While in the National Guard from 1984 to 1986 he worked in
the military police. Tr. 35. Beginning in 2003 in Iraq, he worked with the medical combat unit
and participated in 51 rogue missions. Tr. 35. Gresham was Medevaced home from Iraq in May
2004. Tr. 40.
When Gresham got out of the military he received his license for private security. Tr. 34.
In 2008 he began working for a security company. Tr. 37, 38. Within six months he was
8
promoted to supervisor. Tr. 37. Gresham stated that he began to have anger and aggression
issues and was not sleeping so he went to the VA. Tr. 37. He stated that he was reprimanded for
being aggressive toward his supervisors and other employees at work. Tr. 39. He was
prescribed Zoloft. Tr. 38. Gresham stated that he resigned from the security company in early
2010. Tr. 38-39.
In his applications for SSI and DIB Gresham stated that he became disabled on December
31, 2009. Tr. 186, 190. He testified that he chose this date “after I stated going to my
psychiatrist, and she started pointing out problems, and diagnosed me, I just—I really, I really
can’t explain it. I just—that’s when I just filed for it, because I wasn’t able to find work. . . . And
it seemed like it was just a downward spiral.” Tr. 40.
Gresham went on to describe his physical impairments. Tr. 40. He stated that he takes
900 milligrams each day of Gapatin for chronic low back pain. Tr. 40-41. He has had surgery
on his right foot in the past and screws and pins were inserted. Tr. 41. He injured his left foot in
Iraq when he jumped from a truck during an explosion. Tr. 42. Gresham testified that his feet
are the main source of his pain. Tr. 41. Gresham completed some physical therapy but
continues to feel pain in his back and feet and cannot walk very far. Tr. 45. He occasionally
gets spasms and numbness in his legs which make it difficult for him to move, although he
admits that his medications help manage the frequency of the spasms. Tr. 53-54.
Gresham stated that his aggression keeps him from working. 11 Tr. 49. He does not like
being around a lot of people. Tr. 49. He experiences nightmares frequently. Tr. 49. Gresham
admits to isolating himself to “keep my aggressiveness to myself.” Tr. 50. Gresham stated that,
along with Gapatin, he takes Zoloft, Trechazone, Hydrotetrazine, and Presazine. Tr. 40-41, 50.
11
Gresham also stated that he has problems with his long-term memory. Tr. 49.
9
Further, he is enrolled in a class for PTSD. 12 Tr. 50. Gresham stated that his medications keep
him “drowsy,” “laid back” and “passive,” so when he takes them he does not venture out of the
house often. Tr. 52. The medication makes him sleep during the day but he frequently cannot
sleep during the night. Tr. 53. Gresham acknowledged going to AA meetings through the VA
but he stopped because he did not want to be around others. Tr. 56.
Gresham’s average day at home involves watching television and sleeping. Tr. 51, 53.
He had been watching a lot of war stories but was now trying to avoid watching them; instead,
he tries to watch sports or other programs on TV. Tr. 51. He talks to his mother every day,
either over the phone or in person. Tr. 51. He also talks to his brothers over the phone fairly
often. Tr. 51. He does not see or talk to his father often. Tr. 51. Gresham has a 29-year-old son
who resides in Tennessee. Tr. 51. His relationship with his son is strained due to a physical
altercation and, therefore, they do not talk often. Tr. 51-52. Gresham stated that, after he
returned from Iraq, his fiancée left him because she did not like that he was sleeping with knives.
Tr. 52. Gresham stated that he took a trip to Tennessee with his mother in December of 2011 to
spend Christmas with his family. Tr. 57.
2.
Vocational Expert’s testimony
Vocational Expert (“VE”) Gene Burkhammer testified at the hearing. Tr. 58-62. The VE
described Gresham’s past work. Tr. 59. Both the security guard and the security guard
supervisor positions were light, semi-skilled jobs (SVP: 3). 13 Tr. 59.
12
Gresham indicated that he did not like the group class, so he is being moved to a one-on-one session with his
psychiatrist. Tr. 50.
13
SVP refers to the DOT’s listing of a specific vocational preparation (SVP) time for each described occupation.
Social Security Ruling No. 00-4p, 2000 SSR LEXIS 8, *7-8 (Social Sec. Admin. December 4, 2000). Using the
skill level definitions in 20 CFR §§ 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semiskilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT. Id.
10
The ALJ asked the VE a series of hypothetical questions. Tr. 60-62. The ALJ first asked
the VE to assume a hypothetical individual with the same age, education, and past work
experience as Gresham who could perform a limited range of light work; with no climbing of
ladders, ropes, or scaffolds; occasional climbing of ramps and stairs; frequent balancing;
occasional stooping; frequent kneeling, frequent crouching, and frequent crawling; frequent foot
controls bilateral. Tr. 60. Further, the individual could perform simple and more complex tasks
in an environment with routine changes in work routine and “no work requiring negotiation,
arbitration, or resolution of disputes between opposing parties.” Tr. 60. Finally, the individual
would be off task 5% of the time and there would be frequent contact with the general public, coworkers, and supervisors. Tr. 60. The VE indicated that the described individual would not be
able to perform Gresham’s past work. Tr. 60. However, the VE indicated that there would be
other work available to the described individual, including (1) mail clerk, a light, unskilled job
(SVP 2) with 700 jobs available locally, 7,000 in Ohio, and 180,000 nationally; (2) food service
worker, a light, unskilled job (SVP 2) with 600 jobs available locally, 5,000 in Ohio, and
120,000 nationally; and (3) sales attendant, a light, unskilled job (SVP 2) with 600 jobs available
locally, 5,000 in Ohio, and 100,000 nationally. Tr. 60.
As for the second hypothetical, the ALJ asked the VE to assume an individual with the
same limitations as the first hypothetical but to change the amount of time the individual is off
task from 5% to 20%. Tr. 61. With that limitation, the VE indicated there would be no jobs
available in the economy for the described individual. Tr. 61.
Gresham’s counsel then asked the VE to assume that the described individual would miss
work at least three times a month. Tr. 61. The VE responded that, if the individual missed three
days of work a month on a regular basis, that would exclude all work in the economy. Tr. 61.
11
Referencing Exhibit 4F (Tr. 705-706, Dr. Domb’s 2011 Medical Source Statement)
Gresham’s counsel then asked the VE to assume the limitations given in the ALJ’s first
hypothetical but to add that the individual should have no contact with the public, coworkers or
supervisors (Tr. 61). The VE responded that, with those limitations, there would be no jobs
available to that individual. Tr. 61.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any 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.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy14 . . . .
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.
If the claimant is doing substantial gainful activity, he is not disabled.
2.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
3.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
14
“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).
12
period of at least twelve months, and his impairment meets or equals a
listed impairment, 15 claimant is presumed disabled without further inquiry.
4.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
5.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.
20 C.F.R. §§ 404.1520, 416.920; 16 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors
to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his April 30, 2012, decision, the ALJ made the following findings: 17
1.
Gresham meets the insured status requirements through September 30,
2012. Tr. 13.
2.
Gresham has not engaged in substantial gainful activity since December
31, 2009, the alleged onset date. Tr. 13.
15
The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.
16
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
17
The ALJ’s findings are summarized.
13
3.
Gresham has the following severe impairments: post-traumatic stress
disorder, degenerative disc disease of the lumbar spine, and remote
fracture of the left big toe, status post-surgery. 18 Tr. 13.
4.
Gresham does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments. Tr. 14-15.
5.
Gresham has the RFC to perform light work except that he cannot climb
ladders, ropes or scaffolds. He can occasionally climb ramps and stairs.
He can perform frequent balancing, kneeling, crouching, and crawling,
and occasional stooping. He can use the lower extremities to operate foot
controls on a frequent basis. He can perform simple and more complex
tasks in an environment with routine changes in work routine. He cannot
perform work requiring arbitration, negotiation, or confrontation, or
resolution of disputes between opposing parties. He would be off task
5% of the time. Finally, he can have frequent contact with the general
public, coworkers, and supervisors. Tr. 15-18
6.
Gresham is unable to perform any past relevant work. Tr. 18.
7.
Gresham was born in 1957, and was 52 years old, which is defined as an
individual closely approaching advanced age, on the alleged disability
onset date. Tr. 19.
8.
Gresham has at least a high school education and is able to communicate
in English. Tr. 19.
9.
Transferability of job skills is not material to the determination of
disability. Tr. 19.
10.
Considering Gresham’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that he
can perform, including mail clerk, food service worker, and sales
attendant. Tr. 19-20.
Based on the foregoing, the ALJ determined that Gresham had not been under a disability
within the meaning of the Social Security Act from December 31, 2009, through the date of his
decision. Tr. 20.
18
The ALJ also noted that Gresham had a history of substance abuse, but that it had been in remission since 2009.
Tr. 14. The ALJ concluded that this remote substance abuse had not caused a limitation in Gresham’s ability to
perform basic work activity and was therefore non-severe. Tr. 14.
14
V. Parties’ Arguments
A.
Gresham’s arguments
Gresham presents two arguments. First, Gresham argues that the ALJ failed to follow the
treating physician rule. Doc. 15, pp. 13-14. He contends that, because the ALJ failed to consider
Dr. Jane Domb’s 2011 Medical Source Statement, the ALJ’s decision is not supported by
substantial evidence. Doc. 15, pp. 13-14.
Second, Gresham argues that the ALJ’s decision is not supported by substantial evidence
because: (1) the ALJ relied on an incomplete VE hypothetical (Doc. 15, pp. 16-17); (2) the
ALJ’s RFC finding that he is capable of “frequent interpersonal contact” is not supported by
substantial evidence (Doc. 15, pp. 17-18); and (3) the ALJ’s RFC finding contradicts the ALJ’s
conclusion that Gresham has “moderate” limitations in concentration, persistence, or pace (Doc.
15, pp. 19-20).
B.
Defendant’s arguments
In response, Defendant asserts that Dr. Domb’s 2011 opinion assesses work preclusive
limitations which is the same thing as her March 2012 opinion wherein she concluded Gresham
was unable to work. Doc. 16, pp. 10-11. Thus, the Commissioner argues that, since the ALJ
addressed the March 2012 opinion, Gresham’s argument with respect to the 2011 opinion is
meaningless. Doc. 16, pp. 10-11. Defendant also argues that an ALJ does not have to accept or
give controlling weight to the opinion of a medical source if that opinion is inconsistent with
other evidence or not well supported or if it is on an issue reserved to the Commissioner. Doc.
16, pp. 11.
With respect to Gresham’s arguments regarding the VE hypothetical and RFC, Defendant
asserts that the ALJ inadvertently included the word “confrontation” in the RFC and, in any
event, the ALJ’s failure to include the word “confrontation” in his hypothetical to the vocational
15
expert constitutes harmless error. Doc. 16, pp. 14. Defendant also asserts that the ALJ’s
limitation reducing Gresham’s interpersonal contact from “constant” to “frequent” is supported
by substantial evidence. Doc. 16, pp. 15. Finally, Defendant asserts that the ALJ’s finding that
Gresham has “moderate” limitations in concentration, persistence, or pace is not inconsistent
with his overall RFC or the VE hypothetical because it is a finding of severity, not an RFC
determination. Doc. 16, pp. 16-17.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “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.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
The Commissioner’s findings “as to any fact if supported by substantial evidence shall be
conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn “so long as substantial
evidence also supports the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336
F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the case de novo, nor resolve
conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387
(6th Cir. 1984).
16
A.
Since the ALJ failed to acknowledge or discuss Dr. Domb’s 2011 opinion, the ALJ
did not consider all relevant medical evidence or sufficiently explain the weight
assigned to Dr. Domb’s opinion under the treating physician rule and the Court is
unable to find that the Commissioner’s decision is supported by substantial
evidence.
Gresham argues that the ALJ violated the treating physician rule when he failed to
consider or give “great deference” to Dr. Domb’s 2011 opinion. Doc. 15, pp. 14. Under the
treating physician rule, “[a]n 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); Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 376 (6th Cir. 2013); 20 C.F.R. § 404.1527(c)(2).
If controlling weight is not provided, an ALJ must apply certain factors to determine
what weight should be given to the treating source’s opinion, and the Commissioner’s
regulations also impose a clear duty on an ALJ always to give good reasons in the notice of
determination or decision for the weight given to treating source opinions. 19 Cole v. Comm’r of
Soc. Sec., 661 F.3d 931, 937 (6th Cir. 2011) (citing 20 C.F.R. § 404.1527(d)(2)); Bowen v.
Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir. 2007) . “Those good reasons must be supported
by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.” Cole, 661 F.3d at 937 (quoting Soc. Sec. Rul. No. 96-2p, 1996
SSR LEXIS 9, at *12 (Soc. Sec. Admin. July 2, 1996)) (internal quotations omitted). “This
requirement is not simply a formality; it is to safeguard the claimant’s procedural rights [and] [i]t
19
The factors to be considered are: (1) the length of the treatment relationship and the frequency of the examination,
(2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the consistency of the
opinion with the record as a whole, (5) the specialization of the source, and (6) any other factors which tend to
support or contradict the opinion. Bowen, 478 F.3d at 747; 20 C.F.R. §§ 404.1527(d), 416.927(d).
17
is intended ‘to let claimants understand the disposition of their cases, particularly in situations
where a claimant knows that his physician has deemed him disabled and therefore might be
especially bewildered when told by an administrative bureaucracy that he is not.’” Id. at 937938 (citing Wilson, 378 F.3d at 544). Moreover, “the requirement safeguards a reviewing court’s
time, as it ‘permits meaningful’ and efficient ‘review of the ALJ’s application of the treating
physician rule.’” Id. at 938 (citing Wilson, 378 F.3d at 544-545). An “ALJ’s failure to follow
agency rules and regulations denotes a lack of substantial evidence, even where the conclusion of
the ALJ may be justified based upon the record.” Cole, 661 F.3d at 939-940 (citing Blakely v.
Comm’r of Soc Sec, 581 F.3d 399, 407 (6th Cir. 2009) (internal quotations omitted)). Inasmuch
as 20 C.F.R. § 404.1527(c)(2) creates important procedural protections for claimants, failure to
follow the procedural rules for evaluating treating physician opinions will not be considered
harmless error simply because a claimant may appear to have had little chance of success on the
merits. Wilson, 378 F.3d at 546-547.
In explaining his decision to give “little weight” to Dr. Domb’s 2012 opinion, the ALJ
stated:
As for the opinion evidence, the undersigned has considered the opinion of
treating psychiatrist, Jane A. Domb, M.D., who has followed the claimant’s care
since late 2010. Dr. Domb opined that the claimant “is not able to work” due to
PTSD. (3/19/2012, Exhibit 11F, p.1). Normally, a treating specialist’s opinion
would be entitled to controlling weight, but this opinion is wholly inconsistent
with the corresponding mental health treatment notes. Dr. Domb consistently
assigned a [GAF] in the range of 63 to 65, which is indicative of some mild
symptoms or mild difficulty in functioning. This GAF is inconsistent with Dr.
Domb’s opinion that the claimant cannot work. Further, the treating source does
not state any specific work related limitations, but rather makes a vague statement
that the claimant cannot work. The determination of disability is reserved to the
Commissioner. Therefore, the undersigned can afford little weight to this
opinion. The undersigned gives weight to Dr. Domb’s GAF assessments
throughout the record, as they were more aligned with the objective examination
findings.
18
Tr. 17. The ALJ’s explanation as to why he afforded little weight to Dr. Domb’s contention that
Gresham cannot work is incomplete because, before deciding that an opinion is inconsistent with
the other medical evidence in the record, all the available medical evidence must first be taken
into account. See Gayheart, 710 F.3d at 378 (“[A]n ALJ must consider all relevant evidence in
the case record.”).
Here the ALJ did not consider all relevant evidence. The ALJ did not even mention Dr.
Domb’s 2011 opinion anywhere in his decision. In that opinion, Dr. Domb evaluated Gresham’s
mental capacity using a checklist consisting of 21 categories. Tr. 705-06. Dr. Domb concluded
that Gresham has “poor” ability to: (1) maintain attention and concentration for extended periods
of 2 hour segments; (2) maintain regular attendance and be punctual within customary tolerance;
(3) deal with the public; (4) relate to co-workers; (5) interact with supervisors; (6) function
independently without special supervision; (7) work in coordination with or proximity to others
without being unduly distracted or distracting; (8) deal with work stress; (9) complete a normal
workday and work week without interruption from psychologically based symptoms and perform
at a consistent pace without an unreasonable number and length of rest periods; (10) understand,
remember and carry out complex job instructions; (11) understand, remember and carry out
detailed, but not complex job instructions; (12) socialize; (13) behave in an emotionally stable
manner; and (14) relate predictably in social situations. Tr. 705-06.
Dr. Domb also concluded that Gresham has “fair” ability to: (1) follow work rules; (2)
use judgment; (3) respond appropriately to changes in routine settings; (4) understand, remember
and carry out simple job instructions; (5) manage funds/schedules; and (6) leave home on his
own. Tr. 705-06. She rated him as “good” in only one category: ability to maintain appearance.
Tr. 706.
19
The ALJ stated that Dr. Domb did not state any specific work related limitations and
instead only made a vague statement that Gresham cannot work. Tr. 17. Dr. Domb’s 2011
opinion is more than a vague statement that Gresham cannot work. Tr. 705-06. She identified
specific categories of work-related abilities in which she found him to be “poor” or only “fair.”
Tr. 705-06. She supported her opinion with the fact that Gresham suffered from “PTSD related
to Iraqui war experience.” Tr. 706. The ALJ claims that Dr. Domb consistently assigned GAF
scores in the range of 63-65 (Tr. 17), although the record appears to reflect that Dr. Domb
assigned a GAF in that range only once, in September 2011 (Tr. 796-97). Notably, Dr. Domb
assigned a GAF score of 55 in March 2012—which the ALJ overlooked. Tr. 860-62.
Furthermore, Dr. Domb was not the only doctor to assign a GAF below the 63-65 range;
psychiatrist Dr. Mahfoud assigned Gresham a GAF of 55 in September 2010. Tr. 756. The
foregoing demonstrates that the ALJ not only ignored Dr. Domb’s 2011 opinion, but also that his
reasons for discounting the 2012 opinion may not be fully supported by the record. Moreover, a
review of Dr. Domb’s two opinions shows that they are not the same opinion. Therefore,
Defendant’s contention that the ALJ did not need to consider the 2011 mental capacity
assessment because it “state[s] the same thing” as the March 2012 letter is not persuasive. Doc.
16, pp. 11.
Because the ALJ failed to consider Dr. Domb’s 2011 opinion, he failed to assign weight
to that opinion and/or provide any reason, let alone “a good reason” as to why her opinion should
be given less than controlling weight. Since the ALJ overlooked and/or failed to discuss a
treating physician opinion, the Court is unable to conclude that there is substantial evidence to
support the ALJ’s decision. Cole, 661 F.3d at 939-940; see also Wilson, 378 F.3d at 546-547. 20
20
Harmless error may apply in some treating physician situations. Harmless error will apply only (1) if the opinion
is so “patently deficient that the Commissioner could not possibly credit it;” (2) “if the Commissioner adopts the
20
B.
Other Claims
Gresham also argues that the ALJ’s decision is not supported by substantial evidence
because: (1) the ALJ relied on an incomplete VE hypothetical (Doc. 15, pp. 16-17); (2) the
ALJ’s finding that he is capable of “frequent interpersonal contact” is not supported by
substantial evidence (Doc. 15, pp. 17-18); and (3) the ALJ’s RFC finding contradicts his holding
that Gresham has “moderate” limitations in concentration, persistence, or pace (Doc. 15, pp. 1920). This Opinion does not address Gresham’s additional arguments because, on remand, the
ALJ’s evaluation of Dr. Domb’s 2011 opinion may impact his findings with respect to
Gresham’s RFC and the questions posed to the VE. 21 See Trent v. Astrue, Case No.
1:09CV2680, 2011 U.S. Dist. LEXIS 23331, at *19 (declining to address the plaintiff’s
remaining assertion of error because remand was already required and, on remand, the ALJ’s
application of the treating physician rule might impact his findings under the sequential disability
evaluation).
opinion of the treating source or makes findings consistent with the opinion;” or (3) “where the Commissioner has
met the goal of § 1527(d)(2) . . . even though she has not complied with the terms of the regulation.” Cole v. Astrue,
661 F.3d 931, 940 (6th Cir. 2011) (citing Friend v. Comm'r of Soc. Sec., 375 F. App’x. 543, 551 (6th Cir. 2010).
Here, however, Defendant does not raise the issue and it does not appear that harmless error would be found.
21
Although the Court finds it unnecessary to address Gresham’s second argument, the Court notes that, considering
the discrepancy between the RFC and the VE hypothetical and the fact that the burden shifts to the Commissioner at
Step Five, the ALJ’s omission of the word “confrontation” from the VE hypothetical and/or insertion of the word
“confrontation” in the RFC was most likely not harmless error. If an ALJ relies on a VE’s testimony in response to
a hypothetical, that hypothetical must accurately portray the claimant’s limitations. Varley v. Sec’y of Health &
Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). On remand, the Commissioner will have an opportunity to pose a
proper question to the VE consistent with Gresham’s RFC.
21
VII. Conclusion
For the reasons set forth herein, the Court REVERSES and REMANDS the
Commissioner’s decision for further proceedings consistent with this Opinion and Order. 22
Dated: July 30, 2014
Kathleen B. Burke
United States Magistrate Judge
22
This opinion should not be construed as requiring a determination on remand that Gresham is disabled.
22
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