McCall v. Commissioner of Social Security
Filing
21
Memorandum and Order: For the foregoing reasons, the Magistrate reverses the Commissioners decision and remands this case, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further proceedings consistent with this decision. On remand, the Commissioner should reassess disability based on the assessment of Dr. Christians opinions and address the VEs inconsistent testimony. Related document (s) 1 . Magistrate Judge Vernelis K. Armstrong on 10/31/2014. (B,TM)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Alexis McCall,
:
Plaintiff,
Case No. 1:14CV704
:
vs.
:
Commissioner of Social Security Administration,
:
Defendant.
MEMORANDUM AND
ORDER
:
:
Plaintiff seeks judicial review of a final decision of the Commissioner denying her application for
Supplemental Security Income (SSI) and Disability Insurance Benefits under Titles II and XVI of the Social
Security Act (the Act), 42 U.S.C. §§ 416(i), 423, 1381, et seq., and § 405(g). The parties have consented to the
Magistrate entering final judgment in this case pursuant to 28 U.S.C. § 636(c)(1) and FED. R. CIV. P. 73 (Docket
No. 15). Pending are briefs on the merits filed by both parties (Docket Nos.17 & 19) and Plaintiff’s Reply
(Docket No. 20). For the reasons set forth below, the Magistrate reverses the Commissioner’s decision and
remands this case pursuant to sentence four of 42 U.S.C. § 405(g).
I. PROCEDURAL BACKGROUND
On December 18, 2008, Plaintiff filed both her applications for SSI and DIB, alleging disability
beginning May 30, 2008 (Docket No. 12, pp. 183-185; 186-188 of 662). Plaintiff’s claims for both SSI and DIB
were denied on June 12, 2009, and upon reconsideration on January 22, 2010 (Docket No. 12, pp. 130-135; 139144 of 662). Plaintiff filed a written request for a hearing on June 16, 2010 (Docket No. 12, p. 145 of 662). On
May 20, 2011, a hearing commenced in Cleveland, Ohio, before Administrative Law Judge (ALJ) Dennis
LeBlanc, but was rescheduled so that Plaintiff could obtain legal representation (Docket No. 13, pp. 5-14 of 15).
On September 13, 2011, ALJ Frederick Andreas presided over a second hearing in Cleveland, Ohio, at which
Plaintiff, represented by counsel Marcia Margolius, and Vocational Expert (VE) Deborah A. Lee, attended and
testified (Docket No. 12, pp. 29; 41 of 662). The ALJ issued an unfavorable decision on October 7, 2011
(Docket No.12, pp. 29-40 of 662). The Appeals Council denied review of the ALJ’s decision on December 13,
2012, thus rendering the ALJ’s decision the final decision of the Commissioner (Docket No. 12, p. 12 of 662).
II. FACTUAL BACKGROUND
A.
ADMINISTRATIVE HEARING
1.
PLAINTIFF’S TESTIMONY
Plaintiff testified that she was 29 years old, six feet tall, and weighed approximately 300 pounds (Docket
No. 12, p. 53 of 662). Plaintiff has a driver’s license; however, a friend drove her to the hearing (Docket No.
12, p. 54 of 662). Plaintiff is a college graduate; consequently, she has acquired reading, writing and math skills
(Docket No. 12, p. 55 of 662). Plaintiff testified that she last worked for two years at a car dealership in
Houston, Texas, but lost the job after getting sick, having her hours cut back and moving back to Ohio (Docket
No. 12, pp. 55-56 of 662). When asked, Plaintiff responded that her disability onset date of May 30, 2008,
coincides with the beginning of her illness (Docket No. 12, p. 56 of 662). Plaintiff testified that since moving
back to Ohio, she had tried to work for a temporary agency, but was terminated after one day (Docket No. 12,
pp. 57-58 of 662).
Plaintiff explained that she cannot work because she has a fear of being around people, is tired of being
referred to as “sir” because of her appearance, and would rather stay in the house (Docket No. 12, p. 59 of 662).
2
Plaintiff further elaborated that she does not talk to anyone, is depressed in general, and did not want to be at
the hearing (Docket No. 12, p. 59 of 662). Plaintiff also stated that she prefers not to live, but would not harm
herself. She added that her medicines are not working, that she previously smoked marijuana and has been
trying to quit, but only marijuana, rather than her medicines, calms her down (Docket No. 12, p. 60 of 662).
According to Plaintiff, she still treats at the Nord Center (Docket No. 12, p. 62 of 662). When
questioned about her compliance with treatment orders including hormone testing, Plaintiff responded that she
refused additional testing because she knows what is wrong with her (Docket No. 12, pp. 62-63 of 662). Plaintiff
testified that she vomits every other day and takes nausea medication (Docket No. 12, p. 63 of 662). She
explained that her vomiting is triggered by thoughts or anger, then her chest caves in and she starts having
anxiety attacks (Docket No. 12, p. 64 of 662). Plaintiff also takes Promethazine, Coumadin, Coreg, Imdur,
Seroquel, Paxil, Xanax, Lisinopril, and Percocet (Docket No. 12, p. 64 of 662). Plaintiff noted that she had
recently been in the hospital for five days just prior to the hearing with complaints of heaviness in her chest and
stomach (Docket No. 12, p. 65 of 662).
Plaintiff testified that she last treated at the Nord Center on August 19, 2011 and had an upcoming
appointment the following week (Docket No. 12, p. 65 of 662). Plaintiff described her typical day stating that
she stays in her room, listens to music, and eats home-cooked meals if her mother cooks. Otherwise and most
often, she eats junk food and prefers to be alone. Plaintiff explained that she and her Mother have a contentious
relationship (Docket No. 12, p. 66 of 662). Plaintiff has no hobbies and doesn’t perform household chores
(Docket No. 12, p. 66 of 662). Plaintiff testified that in the past, she was more active, but now she gets sick
thinking about having to get up, get dressed and go somewhere (Docket No. 12, p. 67 of 662).
During direct examination from her lawyer, Plaintiff testified that she gets angry and enraged when she
thinks about “stuff” and that she “goes off” on people, such as her mother , and treats them poorly (Docket No.
12, p. 68 of 662). Plaintiff admitted that she “goes off” on her doctors all the time, and they don’t understand
3
her. She is tired of feeling the way that she does (Docket No. 12, p. 69 of 662). Plaintiff explained her
frustration with the inability of doctors to help her (Docket No. 12, p. 69 of 662).
2.
VE TESTIMONY
The VE described Plaintiff’s past work as kitchen helper, DOT1 318.687-010 and dining room attendant,
DOT 311.677-018, as medium level of exertion, unskilled with a specific vocational preparation (SVP)2 of 2;
shoe sales person, DOT 261.357-062, light, semi-skilled, with an SVP of 4, which Plaintiff performed at the
heavy level; security guard, DOT 372.667-034, light, semi-skilled, with an SVP of 3; telephone solicitor, DOT
299.357-014, sedentary, semi-skilled, with an SVP of 3 and appointment clerk, DOT 237.367-010, semi-skilled,
with an SVP of 3, and performed at a sedentary level (Docket No. 12, pp. 79-80 of 662).
The ALJ then asked the VE to consider a hypothetical person of Plaintiff’s age, education and vocational
background before posing her first hypothetical question:
The person has no exertional limitations, but can interact occasionally and superficially with
others and receive instructions and ask questions appropriately in a smaller or more solitary nonpublic work setting; that person can cope with the ordinary and routine changes in a work setting
that is not fast paced or high demand. Would that person be able to do any of Ms. McCall’s past
work?
(Docket No. 12, pp. 80-81 of 662). After considering these limitations, the VE indicated that such a person
would not be capable of performing any of Plaintiff’s past work (Docket No. 12, pp. 81-82 of 662). The ALJ
followed up and asked the VE whether Plaintiff would be capable of performing any other work in the national
economy (Docket No. 12, p. 82 of 662). The VE provided the jobs of cook helper, DOT 317.687-010, medium,
unskilled, with a SVP of 2, having approximately 10,000 such jobs in northeast Ohio, 32,000 in the State of
1
Dictionary of Occupational Titles (“DOT”)
2
SVP is the amount of lapsed time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker situation.
www.onetonlne.org. SVP is a component of Worker Characteristics information found in the Dictionary of
Occupational Titles (DOT), a publication that provides universal classifications of occupational definitions and how
the occupations are performed. www.occupationalinfo.org.
4
Ohio, and 873,000 in the national economy; kitchen helper, DOT 318.687-010, medium, unskilled, with an SVP
of 2, having approximately 5,800 jobs in northeast Ohio, 17,000 in the State of Ohio, and 509,000 in the national
economy; and cleaner or housekeeper, DOT 323.687-014, light, unskilled, with an SVP of 2, having 4,000 jobs
in northeast Ohio, 13,000 in the State of Ohio, and 403,000 in the national economy (Docket No. 12, p. 82 of
662). With no exertional limitations for the housekeeper job, the VE indicated that 8,000 such jobs exist in
northeast Ohio, 26,000 in the State of Ohio, and 815,000 in the national economy (Docket No. 12, p. 82 of 662).
The ALJ posed the following hypothetical question: “If somebody had . . . really no useful ability to
maintain regular attendance and be punctual within customary tolerances, would that person be able to obtain
or maintain employment? (Docket No. 12, pp. 82-83 of 662). The VE answered “ no,” opining that attendance
is probably the primary aspect of any employment (Docket No. 12, p. 83 of 662). The ALJ followed up by
asking, “and if the person had no ability to respond appropriately to changes in a routine work setting, would
that affect their ability to . . . obtain or maintain employment?” (Docket No. 12, p. 83 of 662). In reply, the VE
noted that being unable to adapt to changes in a routine work setting would affect a hypothetical individual’s
ability to maintain employment (Docket No. 12, p. 83 of 662). The ALJ then asked, “[i]f a person was unable
to understand or remember and carry out simple instructions, how would that affect their ability to obtain or
maintain employment?” (Docket No. 12, p. 83 of 662). The VE explained that she views simple job instructions
as corresponding to unskilled work and if one cannot follow simple instructions, they are not capable of
performing the job (Docket No. 12, p. 83 of 662).
On cross-examination, Plaintiff’s counsel asked the VE to return to the ALJ’s first hypothetical, but to
limit the hypothetical person to light work, and inquired whether there would be jobs that such an individual
could perform? (Docket No. 12, p. 83 of 662). The VE considered the hypothetical and responded that there
would be jobs in the national economy that such an individual would be capable of performing, including the
light duty job of housekeeper previously provided (Docket No. 12, p. 83 of 662). In response to Plaintiff’s
5
counsel, the VE provided other jobs including mail clerk, DOT 209.687-026, light, unskilled, with an SVP of
2, having approximately 1,300 jobs in northeast Ohio, 4,000 in the State of Ohio, and 98,800 in the national
economy (Docket No. 12, p. 84 of 662). The VE also noted that in these positions the individual usually works
alone, has occasional superficial interaction with others in a non-public or non-governmental setting (Docket
No. 12, p. 84 of 662).
B.
MEDICAL RECORDS
Summaries of Plaintiff’s medical records, to the extent necessary and relevant to the issues before this
Court, follow.
1.
MEMORIAL HERMANN HEALTHCARE SYSTEM
!
On August 3, 2007, Plaintiff was hospitalized after complaining of abdominal pain and vomiting
(Docket No. 12, p. 318 of 662). Dr. Jose R. Medina, M.D. evaluated Plaintiff and his clinical
impression reflects acute abdominal pain and gastroesophageal reflux disease (GERD) (Docket
No. 12, p. 320 of 662).
!
On August 26, 2007, Plaintiff was again hospitalized after complaining of worsening and severe
nausea and vomiting. Her diagnoses included Polycystic ovarian syndrome, nausea, vomiting
secondary to irritable bowel syndrome, esophagitis, and a family history of colon cancer.
Plaintiff was discharged on August 30, 2007 (Docket No. 12, p. 329 of 662).
!
On January 2, 2008, Plaintiff was admitted after complaining of difficulties breathing, dizziness,
abdominal pain, diarrhea and vomiting. After evaluation, Plaintiff was diagnosed with acute
abdominal pain, vomiting, hyperglycemia, and fatty liver. An ultrasound of Plaintiff’s
gallbladder noted hepatocellular disease, likely fatty liver, but that Plaintiff’s gallbladder was
normal. X-rays of Plaintiff’s chest were also normal (Docket No. 12, pp. 345-359 of 662).
2.
EMH REGIONAL MEDICAL CENTER & NORTH OHIO HEART CENTER
!
On October 14, 2008, Plaintiff presented to the hospital complaining of vomiting episodes. On
examination, Plaintiff was described as crying-yelling, appearing agitated, anxious, and in
distress. Plaintiff’s primary diagnosis was chronic nausea, vomiting, and mild hypokalemia
(Docket No. 12, pp. 361-366 of 662).
!
On July 14, 2009, Plaintiff visited the emergency room and was evaluated by Dr. Kim Yun,
M.D., after complaining of abdominal pain and vomiting. Plaintiff underwent a CT scan of her
abdomen and pelvis, which revealed a left cystic adnexal mass most likely ovarian in nature, but
that the remainder of Plaintiff’s abdomen and pelvis was otherwise unremarkable. Toxicology
6
results detected benzodiazepines and cannabinoids in Plaintiff’s system. She was discharged on
July 15, 2009 and prescribed Phenergan3 (Docket No. 12, pp. 453-486 of 662).
!
On September 13, 2010, Plaintiff was hospitalized for chest pain. According to the treatment
notes, Plaintiff’s ECG was consistent with acute ST elevation myocardial infarction. Plaintiff
underwent a left heart catheterization and a thrombectomy of her left main anterior descending
artery, which failed to reveal evidence of coronary artery disease (Docket No. 12, pp. 603-604
of 662). On September 16, 2010, Plaintiff underwent a second catheterization and Dr.
Christofferson concluded the Plaintiff’s coronary anatomy was right dominant and recommended
Plaintiff medicate with Coumadin4 long term and maintain regular follow-ups with a primary care
physician or cardiologist (Docket No. 12, pp. 607-608 of 662). Plaintiff was discharged on
September 21, 2010 (Docket No. 12, pp. 603-606; 653-661 of 662).
!
On October 14, 2010, Plaintiff was hospitalized with epigastric and lower chest pain. Plaintiff
was evaluated by Dr. Deborah Vicario, M.D. The results of Plaintiff’s ECG revealed residual
changes in the anterior and inferior leads suggestive of prior cardiac event. Plaintiff was
discharged on October 19, 2010. Her medication list on discharge included Coreg,5 Seroquel,6
3
Phenergan is prescribed to prevent and treat nausea and vomiting. Phenergan oral: Uses, Side Effects,
Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 11:46 AM),
http://www.webmd.com/drugs/2/drug-6606/phenergan-oral/details.
4
Coumadin is prescribed to treat blood clots and to prevent new clots from forming. Coumadin oral: Uses,
Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 11:52 AM),
http://www.webmd.com/drugs/2/drug-4069/coumadin-oral/details.
5
Coreg is prescribed to treat high blood pressure and heart failure. Coreg oral: Uses, Side Effects,
Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 12:28 PM),
http://www.webmd.com/drugs/2/drug-1634/coreg-oral/details.
6
Seroquel is prescribed to treat mental/mood conditions including schizophrenia, and bipolar disorder.
Seroquel oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 12:29 PM),
http://www.webmd.com/drugs/2/drug-4718/seroquel-oral/details.
7
Xanax,7 Paxil, Norvasc,8 Plavix,9 Protonix,10 Imdur, and Coumadin (Docket No. 12, pp. 600-602;
651-652 of 662).
!
On May 25, 2011, Plaintiff was evaluated for chest pain and anxiety in the emergency department
by Dr. Vicario. Plaintiff was described as tearful, alert, and in no acute distress. On examination,
Plaintiff was significant for hirsutism and S1 and S2 were present at her heart. Plaintiff’s
toxicology screen was positive for cannabinoids, benzodiazepines and opiates. Dr. Vicario’s
assessment included chest pain, coronary artery disease with a history of two myocardial
infarctions and, generalized myalgias. Dr. Vicario recommended acute coronary syndrome
protocol, telemetry, a state chest CT to rule out pulmonary embolism, and psychiatric and social
work consultations (Docket No. 12, pp. 638-640;590-591 of 662).
!
On July 24, 2011, Plaintiff was hospitalized after complaining of chest pain. Dr. George Wang,
M.D., evaluated Plaintiff and ruled out a myocardial infarction on the basis of Plaintiff’s ECGs
and cardiac enzymes (Docket No. 12, pp. 588-599). On physical examination, Plaintiff was
described as morbidly obese and her heart sounds remote, faint and regular. Plaintiff underwent
a left heart catheterization to evaluate for potential thrombus. Dr. Wang indicated that he
doubted that Plaintiff had any acute coronary event. He also opined that there was definitely
some component of psychogenic issue, possible conversational disorder, depression and anxiety
among other findings (Docket No. 12, pp. 627-630 of 662). On discharge, Plaintiff’s Carvedilol
dosage was increased; Coumadin, an ACE inhibitor 11 was again prescribed and it was
recommended that she have a metabolic blood panel and international normalized ratio (INR)12
tests in one week (Docket No. 12, pp. 588-589 of 662).
7
Xanax is prescribed to treat anxiety and panic disorders. Xanax oral: Uses, Side Effects, Interactions,
Pictures, Warnings & Dosing, WEBMD (Oct. 10, 2014, 12:30 PM), http://www.webmd.com/drugs/2/drug9824/xanax-oral/details.
8
Norvasc is prescribed to treat high blood pressure. Norvasc oral: Uses, Side Effects, Interactions,
Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 12:32 PM), http://www.webmd.com/drugs/2/drug5942/norvasc-oral/details.
9
Plavix is prescribed to help prevent the formation of blood clots in arteries to the heart. Clopidogrel
(Plavix): MedlinePlus Medical Encyclopedia, MEDLINEPLUS, (Oct. 10, 2014, 12:33 PM),
http://www.nlm.nih.gov/medlineplus/ency/patientinstructions/000100 htm.
10
Protonix is prescribed to treat problems in the stomach and esophagus. Protonix oral: Uses, Side Effects,
Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 12:35 PM),
http://www.webmd.com/drugs/2/drug-18142/protonix-oral/details.
11
Angiotensin-converting enzyme (ACE) inhibitors prevent the body from producing a substance that
narrows the blood vessels in the cardiovascular system. Angiotensin-converting (ACE) inhibitors, MAYO CLINIC,
(Oct. 10, 2014, 3:36 PM), http://www.mayoclinic.org/diseases-conditions/high-blood-pressure/in-depth/ace
-inhibitors/art-20047480.
12
An International Normalized Ratio (INR) or a prothrombin time is a blood test that measures the length
of time required for a blood clot to form. Prothrombin Time (PT) Blood Test for Clotting Time, WEBMD, (Oct. 10,
2014, 1:04 PM), http://www.webmd.com/a-to-z-guides/prothrombin-time.
8
a.
OFFICE TREATMENT RECORDS - DR. RYAN D. CHRISTOFFERSON, M.D.
!
On November 19, 2010, Plaintiff was evaluated by Dr. Christofferson following her
hospitalization for acute coronary syndrome and myocardial infarction. Plaintiff was described
as crying and tearful in the office. It was also noted that Plaintiff had not taken her Paxil13 for
a week. Plaintiff complained of frequent abdominal pain, nausea, vomiting, and chest
discomfort. Dr. Christofferson opined that Plaintiff had possible coronary artery spasm,
hypertension, hyperlipidemia, depression, anxiety and abject status. Dr. Christofferson increased
Plaintiff’s Imdur14 and noted that an ECG in the office did not demonstrate any ischemia (Docket
No. 12, pp. 596-599; 646-650 of 662).
!
On February 18, 2011, Plaintiff reported occasional chest pain and occasionally having taken
nitroglycerin. Plaintiff indicated that she has been in good medication compliance. Dr.
Christofferson, added Lisinopril15 and metoprolol succinate16 to Plaintiff’s medication regimen
and discontinued her Carvedilol17 (Docket No. 12, pp. 594-595; 643-644 of 662).
!
On May 13, 2011, Plaintiff complained of heart palpitations and skipped beat sensation in her
chest. As a result, Plaintiff indicated that she felt nervous and admitted that she had not taken
her medications. Plaintiff was evaluated by Dr. Christofferson who opined that she was having
premature contractions and recommended that Plaintiff be placed back on her medications
(Docket No. 12, pp. 592-593; 641-642 of 662).
!
On July 27, 2011, Plaintiff underwent a catherization from Dr. Christofferson who concluded that
Plaintiff’s coronary anatomy is mixed dominance. Dr. Christofferson recommended medical
management and that Plaintiff should maintain regular follow-up with her primary care physician
and/or cardiologist (Docket No. 12, pp. 586-587 of 662).
!
On August 19, 2011, Plaintiff had a follow up with Dr. Christofferson after her hospitalization
13
Paxil is prescribed to treat conditions including depression, panic attacks, and anxiety disorders. Paxil CR
oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 12:09 PM),
http://www.webmd.com/drugs/2/drug-32900/paxil-cr-oral/details.
14
Imdur is prescribed to prevent chest pain by relaxing and widening blood vessels to improve blood flow.
Imdur oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 12:11 PM),
http://www.webmd.com/drugs/2/drug-2552/imdur-oral/details.
15
Lisinopril is prescribed to treat high blood pressure. Lisinopril: MedlinePlus Drug Information,
MEDLINEPLUS, (Oct. 10, 2014, 3:23 PM), http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692051.html.
16
Metoprolol succinate is a beta-blocker prescribed to treat chest pain, heart failure and high blood
pressure. metoprolol succinate oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct.
10, 2014, 3:25 PM), http://www.webmd.com/drugs/2/drug-8814/metoprolol-succinate-oral/details.
17
Carvedilol is prescribed to treat high blood pressure and heart failure. carvedilol oral: Uses, Side Effects,
Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 10, 2014, 3:27 PM),
http://www.webmd.com/drugs/2/drug-5574/carvedilol-oral/details.
9
for chest pain. Plaintiff complained of feeling a fluttering sensation in her chest all of the time
and constant chest pain. Plaintiff reported that she had stopped taking her medications after
becoming frustrated, but had evidently restarted taking some of the medications prior to her
appointment. On examination, Plaintiff was described having now essentially normal appearing
coronary arteries. Dr. Christofferson continued Plaintiff on aspirin, Coumadin, and increased her
Carvedilol for her elevated heart rate and blood pressure. Plaintiff was also continued on
Isosorbide18 (Docket No. 12, pp. 584-585 of 662).
b.
CONSULTATION - DR. BELAGODU KANTHARAJ, M.D.
On July 26, 2011, Plaintiff underwent a consultation with Dr. Belagodu for management of her
thrombophilia secondary to hormone imbalance. During the consultation, Plaintiff reported constant left-sided
chest pain and several episodes of nausea and vomiting. On examination, Plaintiff was described as alert, in no
respiratory distress, and morbidly obese. Plaintiff’s head, eyes, ears, nose and throat (HEENT) were remarkable
for facial hair and a beard and it was otherwise noted that she had excessive hair. Plaintiff was negative for
hereditary thrombophila, her homcystine level was slightly high, and Plaintiff was noted as having a hormone
imbalance with Hirsutism, which might have predisposed her to develop coronary artery thrombosis. Dr.
Belagodu recommended Plaintiff maintain lifelong anticoagulation with Coumadin (Docket No. 12, pp. 634-635
of 662).
3.
THE NORD CENTER
a.
DR. CAROLYN PARAS, M.D.
i.
TREATMENT
The record contains treatment notes from four treatment sessions Plaintiff had with Dr. Paras for
medication management on October 21, 2008, November 12, 2008, December 10, 2008, and January 7, 2009
18
Isosorbide is prescribed to prevent and treat chest pain by relaxing the blood vessels to the heart to
increase blood and oxygen supply. Isosorbide: MedlinePlus Drug Information, MEDLINEPLUS, (Oct. 10, 2014, 12:26
PM), http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682348 html.
10
(Docket No. 12, pp. 391; 390; 386; 379 of 662). 19
ii.
PSYCHIATRIC EVALUATION
On October 21, 2008, Plaintiff underwent an initial psychiatric evaluation with Dr. Paras and the typed
report of that evaluation details Plaintiff’s reported history of her present illness, medical, and surgical history.
During the evaluation, Plaintiff denied any use of alcohol or other drugs, except marijuana, which she had used
two days earlier. Dr. Paras described Plaintiff as cooperative, having fair eye contact, emotional, with a normal
rate of speech, depressed mood, and without suicidal or homicidal thoughts. Plaintiff denied auditory or visual
hallucinations, but the notes indicate that she expressed paranoid ideations. Plaintiff was also described as alert,
oriented, with organized thoughts and appropriate answers. Plaintiff was unable to complete serial sevens and
indicated that she was unable to think and concentrate very well. Dr. Paras opined that Plaintiff’s insight was
fair and noted that Plaintiff agreed to the suggestion that she avoid using marijuana. Dr. Paras’ diagnosis for
Plaintiff included Major Depression, single, severe with psychotic features rule out dysthymia, anxiety not
otherwise specified, and cannabis abuse. Plaintiff was assessed a Global Assessment of Functioning (GAF)20
score of 50, for serious symptoms. Dr. Paras’ recommendation reflects that she discussed medication options
with Plaintiff, including taking Seroquel for paranoia and hallucinations, Celexa for her mood and anxiety,
Konopin for severe anxiety symptoms, and that Plaintiff stop using marijuana (Docket No. 12, pp. 418-421 of
662).
b.
DR. LORAINNE CHRISTIAN, M.D.
i.
PSYCHIATRIC EVALUATION SUMMARY UPDATE
19
Unfortunately, the treatment notes for each of these sessions are handwritten and
difficult to read. Consequently, only the October 21, 2008 evaluation is specifically addressed.
20
Global Assessment of Functioning (GAF) scores are subjectively assessed to reflect the social,
occupational, and psychological functioning of adults. Global Assessment of Functioning (GAF) Scale, MICH. ST.
UNIV., (Oct. 10, 2014, 1:11 PM), https://www msu.edu/course/sw/840/stocks/pack/axisv.pdf.
11
On February 17, 2009, Dr. Christian completed a summary update on Plaintiff’s psychiatric evaluation.
The results of Plaintiff’s mental status examination described Plaintiff as appearing male noting facial hair
growth. Plaintiff was otherwise described as emotional, feeling helpless and hopeless, depressed, without
homicidal or suicidal ideations, no hallucinations, but express paranoid ideations. Dr. Christian opined that
Plaintiff was alert, oriented, with no obvious cognitive deficits, appropriate in manner and speech, with limited
insight and judgment. Plaintiff’s diagnosis was noted as Major Depression, recurrent, without psychotic features,
Panic Disorder without Agoraphobia, Cannabis Abuse, and rule out Bipolar Disorder. Dr. Christian’s treatment
plan reflects that Plaintiff’s Celexa medication was changed to Pexeva, her Seroquel dosage increased, and the
frequency of her Xanax medication also increased. There was a note to refer Plaintiff for a hormonal work up
as well (Docket No. 12, pp. 415-417 of 662).
ii.
TREATMENT
!
On February 13, 2009, Plaintiff had her first treatment session with Dr. Christian for depression,
anxiety and to rule out any hormonal problem. Plaintiff was described as appearing male with
hair growth on her face and as having hormonal problems. Plaintiff complained of mood swings,
anxiety, feeling hopeless and helpless, and distressed about not finishing school. Dr. Christian
started Plaintiff on Pexera and Xanax (Docket No. 12, p. 432 of 662).
!
On February 20, 2009, Plaintiff indicated that there had been no change in her symptoms. Dr.
Christian noted that Plaintiff did not cry once, but had claimed that she was still vomiting.
Plaintiff’s Seroquel medication was increased and her Xanax and Pexera continued. Plaintiff
reported that she was not interested in any treatment for her hormonal assessment and that the
only thing that helps her is smoking tetrahydrocannabinol (THC) (Docket No. 12, p. 430 of 662).
!
On March 25, 2009, Plaintiff reported that she had run out of Pexera and was vomiting. Dr.
Christian described Plaintiff as crying continuously during the session, being focused on the
death of several family members, including a six month old cousin and also that of her mentor.
Plaintiff complained that she felt trapped by her illness. Dr. Christian’s notes reflect that
Plaintiff’s medications were continued and the session was extended to discuss new sleep
medication, fears about her Mom and how to begin the process for her return to Ohio State.
(Docket No. 12, p. 426 of 662).
!
!
On April 22, 2009, Plaintiff described being angry and upset with the world, but denied suicidal
or homicidal ideations. Plaintiff was noted as appearing anxious and distressed. Dr. Christian
increased Plaintiff’s Xanax and changed her Seroquel medication to Seroquel XR. Plaintiff
12
reported that she was sleeping better with Seroquel and needed to be able to take two Xanax
when she has panic symptoms (Docket No. 12, p. 508 of 662).
!
On June 12, 2009, Plaintiff indicated having ongoing stresses related to her finances and
completing her college degree. Plaintiff’s affect was described as appearing brighter and calmer.
Plaintiff reported that she was doing better with her anxiety and vomiting, which she noted still
occurs when she is stressed. Dr. Christian continued Plaintiff’s medications (Docket No. 12, p.
503 of 662).
!
On August 12, 2009, Plaintiff reported ongoing frustration, feeling helpless and hopeless, but
denied any intent to harm herself. Plaintiff indicated that she had been living with her mom, has
no money, or job, and had been vomiting more. Dr. Christian increased Plaintiff’s Paxil
medication (Docket No. 12, pp. 497 of 662).
!
On September 29, 2009, Plaintiff was described as being upset that people mistake her for a “guy”
or assume that she is a male trying to look like a female. She commented that Nord staff address
her as male. Plaintiff denied suicidal or homicidal ideations. She reported commuting to Ohio
State for a class, but that she did not have money for books or a computer and cannot live on
campus (Docket No. 12, p. 492 of 662).
!
On November 20, 2009, Plaintiff noted feeling overwhelmed by her life, indicated that she was
not doing well at school, and having legal and relationship issues. Plaintiff was described as
tearful and feeling helpless and hopeless, but denied any suicidal and psychosis symptoms. Dr.
Christian increased Plaintiff’s Paxil medication, discussed her stressors and concerns (Docket No.
12, p. 566 of 662).
!
On March 30, 2010, Plaintiff indicated that she was taking her last class before graduating.
Plaintiff was described as upset since she had been told that she cannot use THC and get scripts
for Xanax and advised to quit using THC. Plaintiff was informed that her medications would be
continued so long as she submitted to drug testing (Docket No. 12, p. 561 of 662).
!
On July 6, 2010, Plaintiff reported that she had obtained her degree in criminology and was
looking for a job. Plaintiff also reported that she was still smoking THC when available from
friends and indicated that she was still vomiting. Plaintiff was described as irritable, having no
psychosis, and her weight was 279 pounds. Dr. Christian advised Plaintiff that she would not be
prescribed Xanax if she uses THC and would need drug testing (Docket No. 12, pp. 580-581 of
662).
!
On February 4, 2011, Plaintiff reported doing better, sleeping a lot during the day, but not being
able to sleep at night. Plaintiff was living with her girlfriend, but had been staying with her
mother. Plaintiff indicated that she had experienced problems with intermittent vomiting, was
taking Phenergan, which helped, and informed Dr. Christian that she went to the hospital about
a month ago after a panic attack and was kept overnight. Plaintiff also detailed her heart issues
and the possibility of a stent being put in. Plaintiff was described as depressed, denying psychotic
symptoms, but she reported hearing noises, and had experienced no vomiting or gagging on that
13
day. According to the notes, Plaintiff was not abusing Xanax, but that it would be checked with
a drug screen on that day. It was noted that since Plaintiff reported THC use two weeks earlier,
the drug test might be positive, but that Dr. Christian would continue the Xanax medication and
repeat the drug screen during her next visit (Docket No. 12, pp. 618-619 of 662).
On April 8, 2011, Plaintiff was described as having flat affect and organized thoughts. Dr.
Christian’s notes indicate that Plaintiff had not been compliant with her Paxil because she did not
have the medications despite being given instructions about how to obtain medications. Plaintiff
was advised about where she could obtain the medications for the lowest cost. Plaintiff indicated
that she wanted to continue services at the Nord Center and was experiencing anxiety about
getting a new worker on her case. Plaintiff agreed to work with Dr. Christian until a counseling
position at the agency is filled (Docket No. 12, pp. 614-615 of 662).
!
iii.
MENTAL STATUS QUESTIONNAIRES
On April 17, 2009, Dr. Christian completed a questionnaire for Plaintiff reporting that she was first seen
at the Nord Center by a doctor on October 2, 2008, but that Dr. Christian first saw Plaintiff on February 13, 2009
and last saw her on March 25, 2009. Plaintiff was described as being neat and clean in appearance, talkative, but
is angry, depressed, has flat affect, extreme anxiety, a negative outlook on the future, is oriented x 3, has
difficulty concentrating, poor abstract reasoning, short-term memory loss, poverty of the mind, an IQ within
normal range and poor insight and judgment. The form indicates Plaintiff reported no history of substance abuse,
but uses marijuana and has not engaged in aggressive behaviors, illegal activities, and is otherwise not dependent
on substances. Plaintiff’s diagnosis is listed as Major Depression without psychiatric features, and Panic
Disorder without agoraphobia. Plaintiff’s medications include Pexeva,21 Seroquel, and Xanax. Plaintiff’s ability
to remember, understand and follow directions was assessed as adequate, her abilities to maintain attention,
concentration, and persistence, were all assessed as poor. Plaintiff was also graded as being poor in social
interaction, adaptation, and it was opined that Plaintiff would react poorly and be unable to manage the work
pressures in a work setting (Docket No. 12, pp. 393-395 of 662).
21
Pexeva is prescribed to treat depression, panic attacks, obsessive-compulsive disorder, and anxiety
disorders by restoring the balance of serotonin in the brain. Pexeva oral: Uses, Side Effects, Interactions, Pictures,
Warnings & Dosing, WEBMD, (Oct. 10, 2014, 3:43 PM), http://www.webmd.com/drugs/2/drug-78102/pexevaoral/details.
14
Another included questionnaire dated October 6, 2009, reflects that Plaintiff was first seen by Dr.
Christian on February 17, 2009 and last seen on September 29, 2009 (Docket No. 12, p. 510 of 662). Dr.
Christian reported Plaintiff’s abnormalities as paranoia, easy to anger and flat effect. Dr. Christian opined that
Plaintiff’s cognitive status indicates she has low frustration tolerance, limited insight, is easily confused and has
a normal intellectual range. The form reflects that Plaintiff experiences psychogenic vomiting on an almost daily
basis preventing Plaintiff from activities, that she self-isolates, has destructive self-esteem and feels helpless and
hopeless. Plaintiff was described as being in denial that her gay lifestyle is an issue and that Plaintiff looks and
dresses as a male. The form also reflects that Plaintiff is compliant with medication and appointments, able to
poorly tolerate stress, and capable of managing any benefits. Plaintiff’s diagnosis was listed as Major
Depression, recurrent without psychotic features (Docket No. 12, pp. 510-512 of 662).
c.
OTHER NORD PROVIDERS - COUNSELING & TECHNICAL SERVICES
Plaintiff met with counselors, social worker and technicians at the Center on approximately fortyfour occasions between October 20, 2008 and August 18, 2011.
i.
ADULT DIAGNOSTIC ASSESSMENT - BEATRICE LASSIC, M.ED., LPC
On November 5, 2008, Plaintiff underwent a diagnostic assessment by Ms. Lassic22 and reported a history
of physical, emotional, and domestic abuse. Ms. Lassic opined that Plaintiff had Generalized Anxiety Disorder,
Bereavement, Cannabis Dependence, Dependent Personality Disorder, and she assessed her a GAF score of 45
for serious symptoms. Ms. Lassic’s treatment recommendations included individual counseling, seeing a
psychiatrist for medication, and seeking the assistance of Lorain County Alcohol and Drug Abuse Services
(LCADA). Plaintiff was advised to stop using marijuana when taking her prescribed psychotropic medications.
The results of Ms. Lassic’s mental status exam reflects that Plaintiff was suffering from visual hallucinations,
22
Although Ms. Lassic is not an “acceptable medical source,” her opinion is considered in accordance
with SSR 06-03p.
15
was depressed, anxious, agitated, suffering from anhedonia,23 withdrawn, restless, and experiencing loss of
interests. Plaintiff was described as being of average intelligence. A substance abuse worksheet notes that
Plaintiff had used illegal drugs within the past 12 months, including four to five marijuana joints on a daily basis
over the past year (Docket No. 12, pp. 398-412 of 662)
ii.
DAILY ACTIVITIES QUESTIONNAIRE
On April 17, 2009, Ms. Lassic completed a form concerning Plaintiff’s daily activities and reported first
treating Plaintiff on October 20, 2008 and last treating Plaintiff on February 13, 2009. According to Ms. Lassic,
Plaintiff lives with her mother, has non-adaptive behaviors that prevent her from independent living, gets along
poorly with family, friends, and neighbors, and self-isolates. Ms. Lassic noted that Plaintiff has not attempted
to return to work, has been previously fired, and suffers from psychogenic vomiting. Ms. Lassic opined that
Plaintiff has a minimal ability to do household chores, has good personal hygiene, no ability to shop, drive or use
public transportation, and cannot do her own banking or engage in hobbies. Plaintiff’s ability to keep her medical
appointments was noted as good, but her ability to maintain counseling appointments fair to poor. Plaintiff’s
treatment is listed as medication therapy, which has not impacted her complaints, problems, and behaviors. Ms.
Lassic indicated that Plaintiff is resistant to counseling (Docket No. 12, pp. 396-397 of 662).
MEDICAL SOURCE STATEMENT - COURTNEY GILBERT
4.
On August 4, 2011, Courtney Gilbert completed a source statement for Plaintiff in which she opined that
Plaintiff was no better than fair in any of the activities listed under the three categories of making occupational
adjustments, intellectual functioning, and making personal and social adjustment. The statement is unsupported
by any explanations, medical or clinical findings to support the assessment (Docket No. 12, pp. 582-583 of 662).
C.
CONSULTATIVE EXAMINATION - RONALD G. SMITH, PH.D.
23
Anhedonia is “a psychological condition characterized by inability to experience pleasure in normally
pleasurable acts.” Anhedonia, MERRIAM-WEBSTER DICTIONARY, (Oct. 10, 2014, 3:48 PM),
http://www.merriam-webster.com/dictionary/anhedonia.
16
On February 23, 2009, Plaintiff underwent a psychological evaluation with Dr. Smith. Plaintiff reported
relocating to Elyria, Ohio from Houston in October 2008. Plaintiff indicated that she lived with her mother but
also stays with her cousin or friends because she did not feel comfortable at her mother’s place. Dr. Smith’s
examination notes reflect that Plaintiff is a high school graduate, attended Ohio State University for four years,
but left four classes shy of completing her bachelor’s degree in criminology. Plaintiff reported previously
working as a customer service representative on the phone, and jobs at Foot Locker, Target, and a car dealership.
According to Dr. Smith’s notes, Plaintiff indicated that she sees a counselor and psychiatrist. Plaintiff described
her history with feeling sick noting that she was a track star in college and was supposed to go to the 2004
Olympics before falling ill. Plaintiff noted being prescribed Celexa, Klonopin and Seroquel in the past without
success. Plaintiff was taking Xanax, Paxil, and Seroquel. Plaintiff also indicated taking Phenergan for nausea
and vomiting. Plaintiff denied a past of sports enhancing drugs, but indicated she tried smoking marijuana a
week and a half ago and smoked marijuana after getting out of athletics. Dr. Smith diagnosed Plaintiff with
Dissociative Disorder not otherwise specified and Borderline Personality Disorder. With respect to Plaintiff’s
work-related mental abilities, Dr. Smith opined she would be severely impaired in her abilities to relate to others
in a work situation, understand, remember, and follow instructions, and withstand stress associated with a day-today work activities. Finally, Dr. Smith concluded that Plaintiff would require assistance handling funds if they
were awarded (Docket No. 12, pp. 367-373 of 662).
D.
THE AGENCY’S MEDICAL FINDINGS
1.
INITIAL CONSIDERATION
On June 6, 2009, Dr. Patricia Semmelman, Ph.D., completed a Psychiatric Review Technique (PRT) for
Plaintiff which reflects that a RFC assessment was necessary and a coexisting nonmental impairment required
referral to another medical specialty. Plaintiff’s PRT was evaluated based on listings 12.04 for Affective
Disorders and 12.06 for Anxiety-Related Disorders. Dr. Semmelman determined that Plaintiff’s Depression, not
17
otherwise specified, does not precisely satisfy the diagnostic criteria for listing 12.04 for Affective Disorders.
Similarly, Plaintiff’s Anxiety not otherwise specified was also determined not to precisely satisfy the diagnostic
criteria of the Anxiety-Related Disorder listing. Dr. Semmelman rated as mild Plaintiff’s restrictions of
activities of daily living and rated as moderate restrictions in social functioning, maintaining concentration,
persistence or pace, and otherwise noted no episodes of decompensation of extended duration (Docket No. 12,
pp. 434-447 of 662).
Also on June 6, 2009, Dr. Semmelman, completed a mental residual functional capacity assessment for
Plaintiff. Dr. Semmelman found Plaintiff moderately limited in her abilities to carry out detailed instructions,
maintain attention and concentration for extended periods, work in coordination with or proximity to others
without being distracted, sustain concentration, persistence and pace, interact appropriately with the general
public, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or
peers without distraction, maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness, and respond appropriately to changes in the work setting (Docket No. 12, pp. 448-451 of 662).
2.
RECONSIDERATION
On January 19, 2010, Dr. Elizabeth Das, M.D. determined the initial decision rendered on June 11, 2009
was affirmed as written, noting that on reconsideration Plaintiff did not allege any physical changes, worsening,
or new physical complaints. Furthermore, Dr. Das concluded that the new medical evidence of record did not
suggest that Plaintiff has any severe medical impairments (Docket No. 12, p. 554 of 662). On December 24, 2009,
Dr. Karen Steiger, Ph.D., also determined that the previous mental RFC rendered by Dr. Semmelman rendered
on June 6, 2009 was affirmed by the medical record in the case. Dr. Steiger detailed Plaintiff’s progress
observing that she had returned to school commuting to OSU which was an improvement from August 2009.
Dr. Steiger indicated that there is no significant difference in Plaintiff’s functional limitations. Although Plaintiff
reported four panic attacks a day, Dr. Steiger found them insufficiently documented in the medical evidence
18
(Docket No. 12, p. 553 of 662).
III. STANDARD OF DISABILITY
The Social Security Act sets forth a five-step sequential evaluation process for determining whether an
adult claimant is disabled under the Act. See 20 C.F.R. § 416.920(a) (West 2014); Miller v. Comm’r Soc. Sec.,
2014 WL 916945, *2 (N.D. Ohio 2014). At step one, a claimant must demonstrate she is not engaged in
“substantial gainful activity” at the time she seeks disability benefits. Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007)(citing Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). At step two, the claimant must show
that she suffers from a “severe impairment.” Colvin, 475 F.3d at 730. A “severe impairment” is one which
“significantly limits . . . physical or mental ability to do basic work activities.” Id. (citing Abbott, 905 F.2d at
923). At step three, the claimant must demonstrate that her impairment or combination of impairments meets
or medically equals the listing criteria set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §
416.920(d) (West 2014). If the claimant meets her burden she is declared disabled, however, if she does not, the
Commissioner must determine her residual functional capacity. 20 C.F.R. § 416.920(e) (West 2014).
A claimant’s residual functional capacity is “the most [the claimant] can still do despite [the claimant’s]
limitations.” 20 C.F.R. § 416.945(a) (West 2014). In making this determination, the regulations require the
Commissioner to consider all of the claimant’s impairments, including those that are not “severe.” 20 C.F.R. §
416.945(a)(2) (West 2014). At the fourth step in the sequential analysis, the Commissioner must determine
whether the claimant has the residual functional capacity to perform the requirements of the claimant’s past
relevant work. 20 C.F.R. § 416.920(e) (West 2014). Past relevant work is defined as work the claimant has done
within the past 15 years (or 15 years prior to the date of the established disability), which was substantial gainful
work, and lasted long enough for the claimant to learn to do it. 20 C.F.R. §§ 416.960(b), 416.965(a) (West 2014).
If the claimant has the RFC to perform her past work, the claimant is not disabled. 20 C.F.R. § 416.920(f) (West
2014). If, however; the claimant lacks the RFC to perform her past work, the analysis proceeds to the fifth and
19
final step. Id.
The final step of the sequential analysis requires the Commissioner to consider the claimant’s residual
functional capacity, age, education, and work experience to determine whether the claimant can make an
adjustment to other work available. 20 C.F.R. §§ 416.920(a)(4)(v), (g) (West 2014). While the claimant has the
burden of proof in steps one through four. The Commissioner has the burden of proof at step five to show “that
there is work available in the economy that the claimant can perform.” Her v. Comm’r of Soc. Sec., 203 F.3d 388,
391 (6th Cir. 1999). The Commissioner’s finding must be “supported by substantial evidence that [the claimant]
has the vocational qualifications to perform specific jobs.” Varley v. Sec’y of Health & Human Servs., 820 F.2d
777, 779 (6th Cir. 1987)(citation omitted). If a claimant can make such an adjustment the claimant will be found
not disabled. 20 C.F.R. §§ 416.920(a)(4)(v), (g) (West 2014). If an adjustment cannot be made then the claimant
is disabled. Id.
IV. COMMISSIONER’S FINDINGS
After careful consideration of the disability standards and the entire record, ALJ Andreas made the
following findings:
1.
Plaintiff meets the insured status requirements of the Social Security Act through June 30, 2011.
2.
Plaintiff has not engaged in substantial gainful activity since May 30, 2008, the alleged onset date.
3.
Plaintiff has the following severe impairments: cannabis dependence, polycystic ovary syndrome,
depression, anxiety, dissociative disorder not otherwise specified and borderline personality
disorder.
4.
Plaintiff does not have an impairment or combination of impairments that meets or medically
equals the severity of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5.
After careful consideration of the entire record, ALJ Andreas found that Plaintiff has the residual
functional capacity to perform a full range of work at all exertional levels but with the following
nonexertional limitations: she can interact occasionally and superficially with others, receive
instructions and ask questions appropriately in a smaller or more solitary and nonpublic work
setting. She can cope with the ordinary and routine changes in a work setting that is not fast
paced or of high demand.
20
6.
Plaintiff is unable to perform any past relevant work.
7.
Plaintiff was born on July 10, 1982 and was 25 years old, which is defined as a younger individual
age 18-49, on the alleged disability onset date.
8.
Plaintiff has at least a high school education and is able to communicate in English.
9.
Transferability of job skills is not an issue in this case because the claimant’s past relevant work
is unskilled.
10.
Considering Plaintiff’s age, education, work experience, and residual functional capacity, there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform.
11.
Plaintiff has not been under a disability, as defined in the Social Security Act, from May 30, 2008,
through the date of this decision.
(Docket No. 12, pp. 29-40 of 662).
V. STANDARD OF REVIEW
This Court exercises jurisdiction over the final decision of the Commissioner pursuant to 42 U.S.C. §
405(g) and 42 U.S.C. § 1383(c)(3). McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 832-33 (6th Cir. 2006).
On review, this Court must affirm the Commissioner’s conclusions unless the Commissioner failed to apply the
correct legal standard or made findings of fact that are unsupported by substantial evidence. Id. (citing Branham
v. Gardner, 383 F.2d 614, 626-27 (6th Cir. 1967)). The “findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive.” Miller, 2014 WL 916945, at *3 (quoting 42
U.S.C. § 405(g)). “The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). Substantial evidence is more than a scintilla of evidence but less than a preponderance.” Miller,
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007)). “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
21
based upon the record.’” Cole, 661 F.3d at 937 (quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th
Cir. 2009). “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.” Buxton v. Halter, 246 F.3d 762,
772 (6th Cir. 2001)(citations omitted).
VI. DISCUSSION
A.
ANALYSIS
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence and alleges that the ALJ:
(1) failed to properly adhere to the treating physician rule with respect to his analysis of Dr. Christian’s opinions
and; (2) erred in discounting Dr. Smith’s findings without providing adequate reasons for doing so (Docket No.
17). Defendant generally responds and asserts that the ALJ’s decision is supported by substantial evidence
(Docket No. 19).
1.
DR. CHRISTIAN’S OPINION
In Plaintiff’s first assignment of error, she alleges that the ALJ failed to follow the treating physician rule
in evaluating the opinions of Nord Center treating psychiatrist Lorraine Christian, M.D. and erroneously found
Dr. Christian’s report was based on two visits and thus rendered by a non-treating source. Plaintiff also contends
that the ALJ failed when evaluating Dr. Christian’s opinion to consider at least 14 other sessions Plaintiff had
with Nord Center professionals, including four with psychiatrist Carolyn Paras, M.D.. Finally, Plaintiff
challenges the ALJ’s treating physician analysis and argues that the ALJ failed to apply the requisite factors and
provide “good reasons” for giving the psychiatrist’s opinions “little weight” in the analysis (Docket No. 17).
a.
THE TREATING PHYSICIAN RULE
Federal regulations prescribe certain standards an ALJ must comply with in assessing the medical
evidence contained in the record. The treating physician rule is one such standard and requires that a treating
22
source’s opinion be given controlling weight if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques,” and not otherwise “inconsistent with the other substantial evidence in the case
record.” Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 548 (6th Cir. 2004)); Blakley, 581 F.3d at 406; see also SSR 96-2P, 1996 WL 374188, *1 (July 2, 1996).
The regulations define a treating source as “your own physician, psychologist, or other acceptable medical source
who provides you, or has provided you, with medical treatment or evaluation and who has, or has had an ongoing
treatment relationship with you.” 20 C.F.R. § 416.902 (West 2014). The physician, psychologist, or other
acceptable medical source must treat the claimant “‘with a frequency consistent with accepted medical practice
for the type of treatment and/or evaluation required for [the] medical condition.’” Cruse v. Comm’r of Soc. Sec.,
502 F.3d 532, 540 (6th Cir. 2007)(quoting Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007)). The
treating physician rule stems from the belief that a claimant’s treating physicians are best positioned, as medical
professionals, to provide a detailed picture of the claimant’s impairment and can provide unique perspective that
might not otherwise be obtained from the objective evidence or other reports of examinations. See 20 C.F.R. §
404.1527(c)(2) (West 2014).
Where a treating physician’s opinion is not given controlling weight, there remains a rebuttable
presumption that such opinion is entitled great deference. Rogers, 486 F.3d at 242 (citation omitted). To reject
a treating physician’s opinions an ALJ must provide “good reason” for doing so in their decision to make it
sufficiently clear to “subsequent reviews the weight the adjudicator gave the treating source’s medical opinion
and the reasons for that weight.” Id. (citing SSR 96-2P, 1996 WL 374188, *5). “The requirement of reason-giving
exists, in part, to let claimants understand the disposition of their cases,’ particularly in situations where the
claimant knows that his physician has deemed him disabled and therefore might be especially bewildered when
told by an administrative bureaucracy that she is not, unless some reason for the agency’s decision is supplied.”
Wilson, 378 F.3d at 544 (citation omitted).
To comply with the obligation to provide good reasons for
23
discounting a treating source’s opinion, the ALJ must (1) state that the opinion is not supported by medically
acceptable clinical and laboratory techniques or is inconsistent with other evidence in the case record; (2) identify
evidence supporting such finding; and (3) explain the application of the factors listed in 20 C.F.R. §
404.1527(d)(2) to determine the weight that should be given to the treating source's opinion. Allums v.
Commissioner, 2013 WL 5437046, *3 (N.D.Ohio 2013) (citing Wilson, 378 F. 3d at 546). Those factors require
the ALJ to consider the length, frequency, nature and extent of the treatment relationship, the evidence the
medical source presents to support their opinion (supportability), the consistency of the opinion with the record
as a whole, the specialization of the opinion, and any other factors which tend to support or contradict the
opinion. 20 C.F.R. § 416.927(c)(2) (West 2014).
For medical opinions rendered by sources that cannot be classified as “treating sources,” the regulations
provide a framework for evaluating such opinions. See 20 C.F.R. § 416.927(c) (West 2014). “As a general
matter, an opinion from a medical source who has examined a claimant is given more weight than that from a
source who has not performed an examination (a “nonexamining source”) . . . and an opinion from a medical
source who regularly treats the claimant (a “treating source”) is afforded more weight than that from a source
who has examined the claimant but does not have an ongoing treatment relationship (a “nontreating source”).
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013)(citation omitted). In evaluating these
opinions, the regulations require the ALJ to consider the § 416.927(c)(2) factors for all medical opinions that are
not entitled to controlling weight.
b.
DR. CHRISTIAN IS A TREATING SOURCE
Plaintiff alleges that the ALJ made a fundamental error in weighing Dr. Christian’s opinions, arguing that
the ALJ’s decision notes that Dr. Christian had seen Plaintiff twice, when in fact Dr. Christian had seen Plaintiff
on four occasions (Docket No. 17, p. 17 of 20). Plaintiff argues that the ALJ’s error is fundamental because at
a minimum the ALJ overlooked two additional visits Plaintiff had with Dr. Christian (Docket No. 12, p. 17 of
24
20). Further, Plaintiff contends that the ALJ’s decision cannot be based on substantial evidence since the ALJ
did not review the record (Docket No. 12, p. 17 of 20). The Plaintiff’s contentions are well-taken.
In his analysis of the opinion evidence, ALJ Andreas addressed and summarized State Agency medical
consultant Dr. Patricia Semmelman’s findings, which included highlighting inconsistencies between Plaintiff’s
reports and the treatment notes of Dr. Christian and consultative examiner Dr. Smith. Among ALJ Andreas’
summation of Dr. Semmelman’s findings in his decision, the ALJ wrote that “Dr. Semmelman observed that [Dr.
Christian] had only seen the claimant twice and therefore, had not established a treating relationship with the
claimant” (Docket No. 12, p. 36 of 662). Concluding that Dr. Semmelman’s opinion about Plaintiff’s limitations
was wholly consistent with the evidence and Plaintiff’s RFC, ALJ Andreas gave Dr. Semmelman’s opinion great
weight in his analysis (Docket No. 12, p. 36 of 662).
Next, ALJ Andreas addressed Dr. Christian’s opinions, determining that they were based upon
contradictory and incorrect information that is inconsistent with the evidence of record as a whole (Docket No.
12, p. 36 of 662). The ALJ also determined that Dr. Christian had not established a treating physician relationship
with Plaintiff once again referencing Dr. Semmelman’s statement that Dr. Christian had only seen Plaintiff twice
(Docket No.1 2, pp. 36-37 of 662). Therefore, ALJ Andreas assigned Dr. Christian’s opinion little weight
(Docket No. 12, p. 37 of 662).
The record reflects that Plaintiff’s most extensive mental health treatment with an “acceptable medical
provider” was with Dr. Christian. From February 13, 2009 through April 8, 2011, Dr. Christian treated Plaintiff
13 times. The relevant inquiry, however, is not the total length of the treatment relationship, but whether Dr.
Christian was a treating source at the time she rendered her opinion. Torres v. Comm’r of Soc. Sec., 490
Fed.Appx. 748, 752 n.2 (6th Cir. 2012)(unpublished)(citing Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx.
496, 506 (6th Cir. 2006)(unpublished)); Kane v. Astrue, 2011 WL 3353866, at *7 (N.D. Ohio
2011)(unpublished). Dr. Christian completed her first Mental Status Questionnaire for Plaintiff on April 17,
25
2009. At that time, Dr. Christian had treated Plaintiff four times: February 13, 2009 (for 60 minutes), February
17, 2009 (no time listed), February 20, 2009 (for 30 minutes), and March 25, 2009 (for 45 minutes) (Docket No.
12, pp. 432; 415-417; 430; 426 of 462. Despite such evidence, ALJ Andreas repeatedly asserts in his decision
that Dr. Christian saw the Plaintiff twice (Docket No. 12, pp. 37-37 of 662). Obviously, ALJ Andreas was
incorrect and he erroneously relied on the incorrect fact in determining that Dr. Christian did not establish a
treating physician relationship.
Defendant contends that the ALJ reasonably relied on Dr. Semmelman’s findings, noting that “the issue
is not one of frequency of visits, but one of knowledge of the claimant” (Docket No. 19, p. 12 of 17). Although
Defendant concedes that the ALJ incorrectly found Plaintiff had treated twice with Dr. Christian, the government
insists it was a “misstatement” resulting in “harmless error,” and claims that Dr. Christian could not have offered
a longitudinal view of Plaintiff’s condition having only treated Plaintiff six weeks before rendering her opinions
(Docket No. 19, p. 12 of 17). Defendant asserts that the focus of the Court’s inquiry should be on the fact that
Plaintiff presented inconsistent information over those six weeks (Docket No. 19, p. 12 of 17). Unfortunately,
Defendant cites no legal authority in support of its contentions, and this Court is not concerned with the
reasonableness of ALJ’s reliance, but instead whether the ALJ’s decision is supported by substantial evidence
in the record.
After reviewing the record in this case, the undersigned Magistrate finds the ALJ’s decision is not
supported by substantial evidence. “The Supreme Court has long recognized that a federal agency is obliged to
abide by the regulations it promulgates.” Sameena, Inc. v. United States Air Force, 147 F.3d 1148, 1153 (9th Cir.
1998)(citing Vitarelli v. Seaton, 359 U.S. 535, 545 (1959); Service v. Dulles, 354 U.S. 363, 372 (1957); Accardi
v. Shaugnessy, 347 U.S. 260, 267 (1954)). “The failure of an ALJ to follow the procedural rules for assigning
weight to the opinions of treating sources and the giving of good reason for the weight assigned denotes a lack
of substantial evidence even if the decision of the ALJ may be justified based upon the record.” Allums, 975
26
F.Supp.2d 823 at 830 (citing Blakely, 581 F.3d at 407).
Pursuant to 20 C.F.R. § 416.945(3), the ALJ was required to assess Plaintiff’s RFC “based on all of the
relevant medical and other evidence” including “any statements about what [the claimant] can still do that have
been provided by medical sources.” See 20 C.F.R. § 416.945(3) (West 2014). Section 416.927(c) provides that
“[r]egardless of its source, [the Agency] will evaluate every medical opinion [the Agency] receive[s],” using the
factors set forth in the regulations for evaluating medical opinions. See 20 C.F.R. § 416.927(c) (West 2014). In
this case, the ALJ’s decision clearly failed to comply with either of these regulations. By virtue of incorrectly
noting that Dr. Christian only treated Plaintiff twice, it follows that the ALJ failed to consider at least two
additional treatment dates which were also relevant to the ALJ’s determination.
Notwithstanding the ALJ’s failure to consider Dr. Christian’s other two treatments of Plaintiff, the
undersigned Magistrate observes that the ALJ failed to address a second completed questionnaire concerning
Plaintiff’s mental health, which is included with materials dated October 6, 2009 and signed by Dr. Christian
(Docket No. 12, pp. 510-512 of 662).24 By October 6, 2009, Dr. Christian had treated Plaintiff a total of eight
times from February 13, 2009 through September 29, 2009, which would have certainly qualified her opinion
as that of a treating source (Docket No. 12, pp. 432; 430; 415-417; 426; 508; 503; 497; 492 of 662).
Consequently, Dr. Christian’s October 6, 2009 opinion was entitled to be afforded controlling weight so long as
it was “well-supported by medically acceptable clinical and laboratory diagnostic techniques,” and not otherwise
24
A cover letter included with exhibit 13F, dated August 24, 2009, and addressed to Nord Rehabilitation
Center requested Plaintiff’s provider to supply medical information for a disability reconsideration claim. In the
spaces provided on the letter is Dr. Christian’s signature, a date of October 6, 2009, and provides her dates of
treatment beginning February 17, 2009 through September 29, 2009. Instructions included at the bottom of the letter
request the provider to return to the agency the “Entire Packet (this page with signatures, questionnaire, & invoice)
to Ensure Payment” (Docket No. 12, p. 510 of 662). The next two pages immediately after the signed cover letter is
a completed questionnaire (Docket No. 12, pp. 511-512 of 662). A duplicate copy of the completed questionnaire is
also included in the record as part of exhibit 12F, but is attached to a document invoice that is also dated August 24,
2009, which instructs the provider to include the form with the medical records provided to the Agency so that the
provider may be compensated for the records (Docket No. 12, pp. 487 of 662). The Court takes judicial notice of the
fact that this is the invoice referred to in the signed cover letter in exhibit 13F and is among one of the forms
referenced as being part of the “packet” to be returned to the agency (Docket No. 12, p. 510 of 662).
27
“inconsistent with the other substantial evidence in the case record.” See Hensley, 573 F.3d at 266 (quoting
Wilson,378 F.3d at 548).
If the ALJ determined that Dr. Christian’s opinions were neither well-supported nor consistent with the
other medical evidence of the record, then ALJ Andreas was obligated to provide good reasons for whatever
weight he chose to afford Dr. Christian’s opinions. See Allums v. Comm’r of Soc. Sec., 975 F.Supp.2d 823, 82829 (N.D. Ohio 2013)(citing Wilson, 378 F.3d at 541). The ALJ’s reasoning must be such that it permits
“meaningful review” by this Court of his application of the treating physician rule. Wilson, 378 F.3d at 544.
Since the ALJ failed to consider all of the relevant medical and opinion evidence from Dr. Christian, the
undersigned Magistrate finds the ALJ’s decision is not supported by substantial evidence.
2.
DR. SMITH’S OPINION
In Plaintiff’s second assignment of error, she alleges that the ALJ erred in discounting the opinion of Dr.
Ronald G. Smith, consultative examiner, and argues that the ALJ failed to provide adequate reasons for
discounting his opinion (Docket No. 17, pp. 18-19 of 20). Plaintiff asserts that the Agency’s consultative
examiners are “highly qualified” and “experts” in evaluating disability cases and that the ALJ is required to
“explain” any rejection of these opinions (Docket No. 17, pp. 18-19 of 20). Plaintiff argues that the ALJ used
a “blanket rationale” for discounting Dr. Smith’s opinions, which is essentially inadequate (Docket No. 17, p.
19 of 20).
Although the regulations recognize that State agency medical or psychological consultants and other
program physicians or psychologist are “highly qualified” and “experts” in social security disability evaluation,
the ALJ is not bound by their findings. See 20 C.F.R. § 416.927(e)(2)(i) (West 2014). All the ALJ is required
to do is consider the State agency’s medical and psychological source opinions using the relevant factors found
in §§ 416.927(a)-(d), including the medical speciality of the source of the opinion, expertise, supporting evidence
in the case record, supporting explanations for the opinion, and any other relevant factors for assessing the
28
evidence. See 20 C.F.R. § 416.927(e) (West 2014). Unlike the “good reason” requirement for discounting the
opinion of a treating source, there is no requirement that the ALJ expressly note his findings for each of the
factors set forth in §§ 416.927(a)-(d), instead the ALJ must simply explain the weight given such an opinion after
having considered the relevant factors. See 20 C.F.R. § 416.927(e)(2)(i) (West 2014); SSR 96-6P, 1996 WL
374180 (July 2, 1996) (West 2014).
In his decision, ALJ Andreas summarized Dr. Semmelman’s findings, which included her observations
that Plaintiff’s reports to her consultative examiners and treating sources were inconsistent with each other and
other treatment records concerning her weight, substance abuse and hallucinations (Docket No. 12, p. 36 of 662).
After summarizing Dr. Smith’s findings, the ALJ concluded that Dr. Smith’s opinion was worthy of little weight
because it contains speculation, is based upon inconsistent information, and is generally inconsistent with the
evidence of the record (Docket No. 12, p. 37 of 662). The ALJ’s analysis of Dr. Smith’s findings reflects his
consideration of the requisite 20 C.F.R. § 416.927(c) factors. By characterizing Dr. Smith’s findings as
speculative, and inconsistent, ALJ Andreas has addressed both the supportability and consistency factors set forth
in 20 C.F.R. § 416.927(c).
Accordingly, the undersigned Magistrate finds that the ALJ’s findings with respect to Dr. Smith are
supported by substantial evidence.
3.
VE TESTIMONY
Although not discussed by the parties, the Court notes an apparent inconsistency in the VE’s testimony.
When asked by the ALJ to describe Plaintiff’s past work, the VE included the position of kitchen helper, DOT
318.687-010 (Docket No. 12, p. 79 of 662). In response to the ALJ’s first hypothetical question, the VE testified
that Plaintiff would be unable to perform any of her past work, but then provided examples of other work Plaintiff
was capable of performing and included the job of kitchen helper, DOT 318.687-010 (Docket No. 12, pp. 81-82
of 662). On remand, the Commissioner should address this inconsistency in the VE’s testimony.
29
VII. CONCLUSION
For the foregoing reasons, the Magistrate reverses the Commissioner’s decision and remands this
case, pursuant to the fourth sentence of 42 U.S.C. § 405(g), for further proceedings consistent with this
decision. On remand, the Commissioner should reassess disability based on the assessment of Dr. Christian’s
opinions and address the VE’s inconsistent testimony.
IT IS SO ORDERED.
/s/Vernelis K. Armstrong
United States Magistrate Judge
Date: October 31, 2014
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