Brown v. Commissioner of Social Security Administration
Filing
20
Memorandum Opinion and Order: The Court AFFIRMS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 7/20/2015. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LATIA BROWN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:14-cv-00720
MAGISTRATE JUDGE
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Latia Brown (“Plaintiff” or “Brown”) seeks judicial review of the final decision
of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) denying her
applications for social security disability benefits. Doc. 1. 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. 15. The Court AFFIRMS the Commissioner’s decision.
I. Procedural History
Brown protectively filed applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on September 28, 2010. 1 Tr. 10, 111, 122, 234-244, 266.
She alleged a disability onset date of June 20, 2009. Tr. 10, 236, 266. During the hearing,
Brown, through counsel, amended her alleged onset date to June 24, 2009. Tr. 10, 11, 39.
Brown alleged disability based on HIV, lower back problems, bipolar disorder, and depression.
Tr. 111, 122, 167, 187, 270. After initial denial by the state agency (Tr. 167-180), and denial
1
The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 7/16/2015).
1
upon reconsideration (Tr. 187-200), Brown requested a hearing (Tr. 201-205). On February 13,
2012, Administrative Law Judge Cheryl M. Rini (“ALJ”) conducted an administrative hearing.
Tr. 33-89.
In her January 10, 2013, decision (Tr. 7-32), the ALJ determined that Brown had not
been under a disability from June 24, 2009, the amended alleged onset date, through the date of
the decision. Tr. 10-26. Brown requested review of the ALJ’s decision by the Appeals Council.
Tr. 5-6. On February 26, 2014, the Appeals Council denied Brown’s request for review, making
the ALJ’s decision the final decision of the Commissioner. Tr. 1-4.
II. Evidence 2
A.
Personal, educational and vocational evidence
Brown was born in 1966. Tr. 43-44, 169, 176. Brown has three minor children, ages
seven, five and three at the time of the hearing. Tr. 49. In March 2011, Brown was upset after
receiving reports from the school regarding her son, age six at the time. Tr. 50. When her son
returned from school, Brown questioned her son about the reports and Brown believed that her
son was lying and she started spanking him. Tr. 50. He ran behind the television; Brown
continued to spank him; and he hit his head on the television and ended up requiring stitches on
his face. Tr. 50. As a result of the March 2011 incident, a case was opened with Children and
Family Services. Tr. 49-50. In September 2011, Brown stuck a knife to her son’s throat. Tr. 49.
Her son was not injured. Tr. 49. Brown reported blacking out but she called Children and
Family Services herself. Tr. 49-51. When the social worker interviewed her children, her son
and daughter told the social worker what had happened and indicated that Brown had become
upset with her son because he was not getting his homework correct and had received a bad
2
Brown does not challenge the ALJ’s findings regarding her alleged physical impairments. Doc. 17, p. 3.
Accordingly, the Court’s summary of the evidence is generally limited to evidence relating to Brown’s alleged
mental impairments.
2
interim report. Tr. 51-52. Children and Family Services removed Brown’s children from her
home at that time and they were returned to her home in December 2011. 3 Tr. 49-50.
Brown completed the 12th grade but was unable to earn her high school diploma because
she was unable to pass the math proficiency test. Tr. 64. Although she was unable to obtain her
high school diploma, she was able to pass a test that allowed her to start classes at Tri-C. Tr. 64.
She attended Tri-C from 2007 until 2008 and studied law. Tr. 64. In 2008, Brown indicated
that her grades started to fall due to a number of issues, including mental health issues and being
pregnant with her third child. Tr. 64. Because her grades fell, she lost her financial aid and was
unable to continue with school. Tr. 64-65.
Brown worked as a daycare worker in her aunt’s daycare facility in 2008, 2009, and
2010. Tr. 62-66. Brown worked first shift, i.e., from 8:00 a.m. until 2:50 p.m. taking care of
children ages nine month to one year. Tr. 62, 65. While at work, Brown’s oldest son was in
school and her two younger children were in another daycare. Tr. 63. Before starting work,
Brown dropped her children at school and/or daycare and she picked them up once she was out
of work. Tr. 63. While working at the daycare center, she was also attending school at Tri-C.
Tr. 63.
B.
Medical evidence
1. Treatment history
On January 21, 2011, 4 Brown underwent a psychiatric evaluation by Stephanie Martin,
APN, at the Murtis H. Taylor Multi-Service Center (“Murtis Taylor”). Tr. 921-926. Brown
3
While the children were removed from Brown’s home, they were placed with Brown’s mother. Tr. 49.
4
Medical records prior to 2011 reflect evaluation of and/or diagnoses regarding Brown’s mental health. In August
2009, Brown sought treatment at an emergency room for complaints of pain. Tr. 958-959. During that emergency
room visit, a psychiatric consult was requested because Brown reported depression. Tr. 958. She had denied
thoughts of suicide. Tr. 958. On discharge, Brown’s diagnoses were HIV and depression. Tr. 958. Also, on
August 25, 2010, Brown sought emergency room treatment for complaints of pain. Tr. 966-968. Treatment notes
3
reported a history of depression, anxiety and anger starting in her teenage years. Tr. 921. She
reported having been diagnosed with bipolar disorder, mixed, in 2009 and HIV in 2006. Tr. 921.
In 2006, Brown tried to cut her wrists but was stopped by her mother and, in 2010, Brown
attempted an overdose. Tr. 921. Brown complained of depression, anxiety that “comes and
goes,” racing thoughts, getting off-track at times, and being paranoid at times “about strangers
out on street.” Tr. 923. Brown reported no problems with memory and denied hallucinations.
Tr. 923. Brown had not been taking medication but indicated a willingness to take lithium for
mood stabilization. Tr. 926. Ms. Martin assessed bipolar disorder, NOS and a GAF score of
50. 5 Tr. 924. Ms. Martin started Brown on lithium. Tr. 924, 926.
Upon self-referral, on August 31, 2011, Brown sought counseling through Berea
Childrens Home and Family Services (“BCHFS”). Tr. 1169-1207. An Adult Mental Health
Assessment was completed. Tr. 1169-1191. Brown indicated she was seeking services through
BCHFS to help her with her parenting skills. Tr. 1169. Brown reported having received
outpatient care through Murtis Taylor and she had been diagnosed with bipolar disorder and
prescribed Seroquel. Tr. 1169. Brown indicated she stopped taking the medication because it
made her very sedated and she could not care for her children. Tr. 1169. Brown reported a
“chronic history of explosiveness, irritability, a feeling of losing control, and intermittent
auditory hallucinations.” Tr. 1169. Brown feared harming her children during an explosive
from that visit reflect that Brown’s past medical history included HIV and depression but reflect “[n]o change in
psychiatric status.” Tr. 966. In September 2010, Brown was admitted to a skilled nursing facility for treatment of
an intraspinal abscess. Tr. 372. Brown’s discharge summary from the skilled nursing facility reflects diagnoses of
spinal abscess, HIV and bipolar disorder. Tr. 371.
5
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 41 and 50 indicates “serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational,
or school functioning (e.g., few friends, unable to keep a job).” Id.
4
episode. Tr. 1169. She indicated that the Department of Children and Family Services was
involved with her family because of an incident involving one of her children in May of that
year. Tr. 1169. Following an assessment, diagnoses included affective psychosis, NOS. Tr.
1190. Brown’s GAF score was 45. Tr. 1190.
Following an October 2011 incident in which it was alleged that Brown placed a knife to
her son’s neck, Brown’s children were temporarily removed from her home. Tr. 1125, 11481151. Brown was thereafter seen on October 21, 2011, at Catholic Charities by Cheryl Wills,
M.D., for a psychiatric evaluation. 6 Tr. 1125-1128. Dr. Wills indicated that Brown presented as
an obese female in emotional distress who appeared distressed and overwhelmed and at times
was tearful and irritable. Tr. 1127. Dr. Wills’ diagnoses included major depressive disorder,
recurrent with psychosis and PTSD, chronic. Tr. 1127. Dr. Wills assessed a current GAF score
of 50. Tr. 1127. Dr. Wills indicated that Brown’s highest GAF score in the past year was 60. 7
Tr. 1127. Dr. Wills prescribed Prozac. Tr. 1128. Dr. Wills’ assessment included a Beck
Depression Inventory (“BDI”). 8 Tr. 1127-1132. Brown’s BDI score was a 55, correlating to
severe depression. Tr. 1132, 1134.
Brown subsequently saw Dr. Wills on October 26, 2011 (Tr. 1124), November 16, 2011
(Tr. 1122-1123), and December 23, 2011 (Tr. 1117-1120). During her November 16, 2011,
6
Brown was continuing to and received services through BCHFS until November 2011 when she started receiving
counseling through Catholic Charities, as required by the Department of Children and Family Services. Tr. 1207.
Brown’s a BCHFS Mental Health Discharge Summary reflects that Brown had “made progress exploring triggers to
her anger, and was able to identify antecedents/consequences to inappropriately expressing anger.” Tr. 1207. She
had sought medication to help decrease her feelings of depression. Tr. 1207. The discharge summary also reflects
that Brown had made progress on her goals but no goals had been met yet due to her case being terminated early.
Tr. 1207. However, it was noted that Brown had been able to develop a “healthy ‘plan of action’” for when she was
feeling overwhelmed. Tr. 1207.
7
A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or
school functioning. Id.
8
The Beck Depression Inventory “is a 21-item, self-report rating inventory that measures characteristic attitudes and
symptoms of depression.” See http://www.apa.org/pi/about/publications/caregivers/practicesettings/assessment/tools/beck-depression.aspx (last visited July 16, 2015).
5
visit, Brown indicated that her home had been robbed. Tr. 1123. She had been without
medication for a few days because the robbers took her medication. Tr. 1123. Her home had
been a “safe haven” for her until the incident. Tr. 1123. Brown indicated that the robbers had
tried to return that week and broke another window when she was home. Tr. 1123. She had
slept well the prior night because a friend stayed with her. Tr. 1123. She remained irritable and
missed her children who had been with Brown’s mother. Tr. 1123. In December 2011, Brown
indicated she was continuing to have flashbacks of her house being burglarized. Tr. 1118. She
had thoughts of hurting the people who had robbed and betrayed her but had no plans or intent to
do so because she did not want to jeopardize her relationship with her children. Tr. 1118.
On November 30, 2011, Roy A. Szubski, LISW, LICDC, a Clinical Supervisor social
worker with Catholic Charities, authored a “To whom it concerns” letter wherein he indicated
that he was Brown’s counselor/therapist and had seen her three times since November 7, 2011.
Tr. 1160-1162. Mr. Szubski stated that he “initially found Ms. Brown very depressed and
anxious, worried about her children and about what she did which caused the children to be
taken into custody.” Tr. 1160. Mr. Szubski had reviewed Dr. Wills’ Mental Functional Capacity
Assessment and agreed with her conclusions. Tr. 1160 (referring to Dr. Wills’ diagnoses of
recurrent major depression with psychotic features and PTSD and Dr. Wills’ notes that
“community stress sets off (triggers) flashbacks of past abuse. She can be hyper-vigilant, has
emotional numbing, and had flashbacks on 10/17/11 when her child upset her.”). Mr. Szubski
stated that he believed that, if Brown confronted her PTSD, she would learn to deal with her
anger as well as her need to hear the reassuring voice of her deceased uncle whom Brown had
thought of as a father. Tr. 1160, 1161.
6
2. Medical opinions
a. Treating psychiatrist
On October 21, 2011, Cheryl D. Wills, M.D., completed a Mental Functional Capacity
Assessment for Ohio Job & Family Services. Tr. 1133-1137. Dr. Wills indicated that Brown
was markedly limited in her 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. Tr. 1136. Dr. Wills also indicated that
Brown was moderately limited in a number of other work-related abilities. Tr. 1136. Dr. Wills
indicated that Brown was too depressed and traumatized at that time to work and suggested
reassessment of her condition in 18 months. Tr. 1135, 1136.
On February 10, 2012, Dr. Wills completed a Medical Source Statement. Tr. 1212-1217.
Dr. Wills reported having seen Brown on October 21, 2011, October 26, 2011, November 16,
2011, December 23, 2011, and February 10, 2012. Tr. 1212. Dr. Wills noted that Brown had
missed an appointment in January because one of her children was in the hospital. Tr. 1212. Dr.
Wills’ diagnoses included post-traumatic stress disorder and major depressive disorder, recurrent
with psychotic features. Tr. 1212. Dr. Wills indicated that Brown’s current GAF score was 53
and her highest GAF score in the past year was 60. Tr. 1212. Dr. Wills indicated that she had
treated Brown with anti-depressants and anti-psychotic medication and Brown had shown slight
improvement in her symptoms. Tr. 1212. Dr. Wills reported the following clinical findings:
irritability; hearing a voice telling her to “kill herself;” sadness; poor sleep; impatience; mood
lability; yelling a lot when stressed; anhedonia; nightmare every night; overly vigilant; and
paranoia. Tr. 1221. Dr. Wills indicated that Brown’s prognosis was “guarded to fair.” Tr. 1212.
7
In the February 10, 2012, Medical Source Statement, Dr. Wills rated Brown’s mental
abilities and aptitudes needed to do unskilled, semi-skilled and skilled work, and particular types
of jobs. Tr. 1214-1215. There were a total of 25 categories rated, with rating choices of
“unlimited or very good,” “limited but satisfactory,” “seriously limited, but not precluded,”
“unable to meet competitive standards,” and “no useful ability to function.” Tr. 1215.
Dr. Wills rated Brown’s ability as “unable to meet competitive standards” in 3 categories:
(1) complete a normal workday and workweek without interruptions from psychologically based
symptoms; (2) interact appropriately with the general public; and (3) maintain socially
appropriate behavior. Tr. 1214-1215. Dr. Wills rated Brown’s ability as “seriously limited, but
not precluded” in 12 categories: (1) maintain attention for two hour segments; (2) maintain
regular attendance and be punctual within customary, usually strict tolerances; (3) work in
coordination with or proximity to others without being unduly distracted; (4) accept instructions
and respond appropriately to criticism from supervisors; (5) get along with co-workers or peers
without unduly distracting them or exhibiting behavioral extremes; (6) respond appropriately to
changes in a routine work setting; (7) deal with normal work stress; (8) be aware of normal
hazards and take appropriate precautions; (9) understand and remember detailed instructions;
(10) carry out detailed instructions; (11) deal with stress of semiskilled and skilled work; and
(12) use public transportation. Tr. 1214-1215. Dr. Wills rated Brown’s ability as “limited but
satisfactory” in 6 categories: (1) remember work-like procedures; (2) sustain an ordinary routine
without special supervision; (3) make simple work-related decisions; (4) perform at a consistent
pace without an unreasonable number and length of rest periods; (5) set realistic goals or make
plans independently of others; and (6) travel in unfamiliar places. Tr. 1214-1215. Dr. Wills
rated Brown’s ability as “unlimited or very good” in 4 categories: (1) understand and remember
8
very short and simple instructions; (2) carry out very short and simple instructions; (3) ask
simple questions or request assistance; and (4) adhere to basic standards of neatness and
cleanliness. Tr. 1214-1215.
Dr. Wills offered the following explanation for her findings noted above:
She can’t focus consistently due to voices telling her to kill herself. She is overly
vigilant, paranoid, hears voices and intentionally hit a fellow commuter in the
head [with] her . . . purse on the crowded bus today because he tripped over her
child (3yo). The bus driver counseled her instead of calling the police. She said
if placed in the same situation she probably would do the same thing.
Tr. 1215. Dr. Wills also opined that Brown’s impairments or treatment would cause her to be
absent more than 4 days each month. Tr. 1215.
a. Consultative examining psychologist
On March 4, 2011, David V. House, Ph.D., conducted a consultative psychological
evaluation and set forth his results and opinions in a report. Tr. 928-935. Following his
evaluation, Dr. House’s diagnoses included mood disorder, secondary to HIV infection with
depressive features, and posttraumatic stress disorder. Tr. 933-934, 935.
Dr. House opined that Brown’s ability to understand, remember and follow instructions
did not appear to be limited. Tr. 934. Dr. House opined that Brown was moderately limited in
her ability to: maintain attention and concentration, persistence and pace, and to perform simple
repetitive tasks due to depressive features and posttraumatic stress; and relate to others,
including fellow workers and supervisors, noting that Brown was somewhat socially isolated but
not agoraphobic. Tr. 934. Also, Dr. House opined that Brown’s insight into her current situation
and her overall level of judgment was moderately limited. Tr. 934. Dr. House opined that
Brown was markedly limited in her ability to withstand stress and pressure associated with dayto-day work activities, primarily due to some aspects of posttraumatic stress, such as aspects of
9
depersonalization, and mood swings; and in her level of adaptability, noting that Brown’s
emotional condition was related to a chronic health condition. Tr. 934.
Dr. House assessed a GAF of 43, noting that his GAF assessment was based on Brown
having, at times, intense symptoms of depersonalization and mood swings. Tr. 935. He
indicated that, at the time of his evaluation, Brown demonstrated serious impairment in terms of
employability. Tr. 935.
b. State agency reviewing psychologist
David Dietz, Ph.D.
On March 19, 2011, state agency reviewing psychologist David Dietz, Ph.D., conducted a
review of Brown’s file and completed a Psychiatric Review Technique (Tr. 115-117) and Mental
RFC (Tr. 117-119). In the Psychiatric Review Technique, Dr. Dietz opined that Brown had mild
limitations in activities of daily living and moderate difficulties in maintaining social functioning
and in maintaining concentration, persistence or pace. Tr. 116.
In the Mental RFC, Dr. Dietz found that Brown had no limitations in the area of
“understanding and memory.” Tr. 117. Dr. Dietz found limitations in the areas of “sustained
concentration and persistence,” “social interaction,” and “adaptation.” Tr. 117-119.
In the area of “sustained concentration and persistence,” Dr. Dietz found Brown to be
moderately limited in her ability to: carry out detailed instructions; maintain attention and
concentration for extended periods; and 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; but not significantly limited in her ability to
carry out very short and simple instructions; perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances; sustain an ordinary routine
10
without special supervision; work in coordination with or in proximity to others without being
distracted by them; and make simple work-related decisions. Tr. 117-118. Dr. Dietz explained
that, while Brown appeared to have some problems with concentration, she was able to conduct
her activities of daily living and care for her children and she did not have any episodes of
decompensation nor was she taking psychiatric medication. Tr. 118.
In the area of “social interaction,” Dr. Dietz found Brown to be moderately limited in her
ability to interact appropriately with the general public; accept instructions and respond
appropriately to criticism from supervisors; and get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; but not significantly limited in her ability to
ask simple questions or request assistance; or maintain socially appropriate behavior and adhere
to basic standards of neatness and cleanliness. Tr. 118. Dr. Dietz explained that Brown did
appear to have issues interacting with others on more than a superficial basis but, at that time, a
lot of her social isolation appeared to be related to her difficulty walking rather than her
psychological symptoms. Tr. 118.
In the area of “adaptation,” Dr. Dietz found that Brown was moderately limited in her
ability to respond appropriately to changes in the work setting but not significantly limited in her
ability to be aware of normal hazards and take appropriate precautions; travel in unfamiliar
places or use public transportation; and set realistic goals or make plans independently. Tr. 118119. Dr. Dietz explained that Brown appeared to struggle to some degree with change. Tr. 119.
In rendering his opinion, Dr. Dietz considered Dr. House’s opinion and found that:
The CE offers the diagnosis of PTSD, however there is no support for this
diagnosis, it appears that he made the diagnosis with the traumatic event being the
diagnosis of HIV, this is an inappropriate use of the diagnosis. Furthermore, the
CE appears to have considered physical limitations when assessing her
psychological abilities.
11
Clmt appears to be capable of completing 3 to 4 step tasks that do not have strict
production standards or schedules in an environment that does not require more
than superficial social interactions.
Tr. 119.
Carl Tishler, Ph.D.
On July 19, 2011, on reconsideration, state agency reviewing psychologist Carl Tishler,
Ph.D., conducted a review of Brown’s file and completed a Psychiatric Review Technique (Tr.
141-142) and Mental RFC (Tr. 144-146). Dr. Tishler’s opinion was substantially similar to Dr.
Dietz. Compare Tr. 141-142, 144-146 with Tr. 115-119. When explaining his opinion regarding
Brown’s Mental RFC, Dr. Tishler, like Dr. Dietz, did not find Dr. House’s consultative
examining psychologist’s opinion wholly supportable. Tr. 146. Also, like Dr. Dietz, Dr. Tishler
opined that “Clmt appears capable of completing 3 to 4 step tasks that does not require more than
superficial social interactions.” Tr. 146. Dr. Tishler, however, did not include Dr. Dietz’s
limitation of no “strict production standards or schedules.” Compare Tr. 146 with Tr. 119.
C.
Testimonial evidence
1.
Plaintiff’s testimony
Brown was represented and testified at the administrative hearing. Tr. 40-66, 69-76, 8788. Brown’s medications included Prozac and she had recently started taking Abilify to address
the voices that she reported she was continuing to hear, including voices telling her to kill
herself. Tr. 46, 74-75. Brown stated that she was interested in having her doctor increase her
Prozac dosage because she was still feeling depressed. Tr. 47-48, 52. She noted that her
children had just been returned to her and she was trying to deal with her three-year-old’s
behavioral issues. Tr. 48. Also, she reported that overall, she has a difficult time dealing with
her children’s behavior, their talking back, and their lying. Tr. 71. She snaps at them, and
12
screams and yells or uses a belt on them. Tr. 71. Brown discussed a recent incident on a bus
involving her three-year-old son and an altercation with another passenger. Tr. 48, 71. A man
had pushed her son over on the bus and she responding by hitting him with her purse. Tr. 48, 71.
She also reported having altercations with other people in the past, including her sister and
someone at a prior job. 9 Tr. 71-72.
Brown indicated that some of her depression comes from the fact that she really does not
have anyone around to help her. Tr. 52. Her mother took care of Brown’s children while they
were removed from Brown’s home but her mother works and has told Brown it is time that she
grows up and be a mother. Tr. 52-53. Brown was receiving no help or financial assistance from
her children’s fathers. 10 Tr. 53.
Brown indicated that she has a difficult time concentrating. Tr. 72-73. Sometimes
people will be talking to her and asking her questions and she does not focus well, starts talking
about something else, or spaces out. Tr. 73. She reported losing interest in things such as
skating and going to the movies when she found out in 2006 that she was HIV positive. Tr. 73.
After her HIV diagnosis, Brown reported gaining in excess of 100 pounds over the period of a
year. Tr. 73-74.
Brown believes that people are out to get her. Tr. 74. For example, when she is at a
store, she will let people walk in front of her because she is afraid that they are going to hit her.
Tr. 74. Also, her house has been broken into before, so she is unable to sleep at night. Tr. 74.
Brown saw a social worker through the Economic Opportunity in Greater Cleveland in
2011 for about 2 months. Tr. 55-56. In August 2011, Brown started seeing someone at Berea
9
When working one job, she had an incident with an individual and ended up having to resign her position. Tr. 72.
10
Her daughter’s father had been paying child support but stopped in October 2011. Tr. 53.
13
Children and Family Services. Tr. 56-57. Thereafter, in October 2011, she began seeing Dr.
Wills and a counselor through Catholic Charities. Tr. 56-58.
Brown indicated that she would be unable to perform her part-time work as a daycare
worker because of her mental health issues. Tr. 66. She noted, “I can’t even deal with my own
three kids, so how can I care for somebody else’s kids right now?” Tr. 66. She also reported
that, with her physical and mental conditions, she did not think that she could perform a job with
her physical and mental conditions five days a week, eight hours a day. Tr. 75. She stated that
she did not feel her Prozac was helping and she had only recently been prescribed Abilify. Tr.
75. She also indicated that she did not believe that she would be able to deal with the public or
people in a work-like setting because she was, at that time, thinking about hurting a lot of people
because of what people had done to her with respect to her being HIV positive. Tr. 75.
2.
Vocational Expert’s testimony
Vocational Expert (“VE”) Kevin Yi testified at the hearing. Tr. 66-69, 76-87. The VE
described Brown’s daycare worker position as a semi-skilled, light job. Tr. 67.
For her first hypothetical, the ALJ asked the VE to assume a younger individual with a
limited education and with the same vocational profile as Brown who can lift or carry 20 pounds
occasionally; 10 pounds frequently; can sit at least 6 hours in an 8-hour day, with normal breaks,
meaning about every 2 hours; can stand or walk at least 6 hours in an 8-hour day, with normal
breaks, meaning about every 2 hours; cannot climb any ladders, ropes, or scaffolds, but can
perform all other postural maneuvers on a frequent basis; can only occasionally reach overhead
with both arms and can only occasionally work above shoulder level with both arms; should
avoid concentrated exposure to vibration so no working on vibrating surfaces or with vibrating
hand-held tools; must avoid work at unprotected heights or around hazards; can understand,
14
remember and carry out simple instructions, routine or repetitive tasks, and some detailed
instructions or tasks, but no highly technical or complex instructions or tasks; can only perform
low-stress work, meaning no high production or rapid production quotas; can perform work with
only superficial interaction with co-workers and supervisors; and work is limited to work with no
intense interpersonal aspects, meaning no arbitration, negotiation, confrontation, no managerial
responsibilities and no responsibilities for the safety of others. Tr. 76-77.
The VE indicated that the individual described in the first hypothetical would be unable
to perform Brown’s past work but the described individual would be able to perform other jobs,
including (1) mailroom clerk, 11 an unskilled, light level job with about 60,000 jobs available
nationwide and 2,500 in the state of Ohio; and (2) final inspector, an unskilled, light level job
with about 60,000 jobs available nationwide and 2,500 in the state of Ohio. Tr. 78. In response
to questioning from Brown’s counsel, the VE indicated that both the mailroom and final
inspector jobs would have production requirements but not high production requirements. Tr.
79-80. Thus, those jobs would remain available to the individual described in the first
hypothetical who would be precluded from jobs with high production quotas. Tr. 80.
For her second hypothetical, the ALJ asked the VE to assume the same individual as
described in her first hypothetical except that the individual can only lift or carry 10 pounds
occasionally and small objects frequently. Tr. 80. The VE indicated that the individual
described in the second hypothetical would be unable to perform Brown’s past work but there
were jobs that the described individual could perform, including (1) bench worker, an unskilled,
sedentary level job with about 16,000 jobs available nationwide and about 700 in the state of
Ohio; (2) lab weight tester, an unskilled, sedentary level job with about 12,000 available
nationwide and about 700 in the state of Ohio; and (3) final assembler, an unskilled, sedentary
11
The VE indicated that the mailroom clerk position would be in an office not a post office. Tr. 78.
15
level job with about 25,000 available nationwide and above 1,000 in the state of Ohio. 12 Tr. 8182.
In response to questioning from Brown’s counsel, as modified by the ALJ, 13 the VE
indicated that, if the individual described in the second hypothetical was also only able to sit for
approximately 2 hours in an 8-hour workday day and stand and/or walk about 2 hours in an 8hour workday, there would be no jobs available for the described individual. Tr. 83-85. The VE
indicated that, if the individual described in the second hypothetical could either sit or stand for 8
hours but needed a job that allowed her to shift from sitting to being on her feet or from being on
her feet to sitting at will, there would be sedentary jobs available to the individual. Tr. 85.
However, if every 30 minutes, the hypothetical individual had to walk for 5 minutes, the
individual would be leaving their workstation and there would be no sedentary jobs available.
Tr. 87.
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
12
For the final assembler job, the VE indicated that the job numbers provided were reduced to account for the fact
that some final assemblers use a hand tool with vibration and some require high or rapid production. Tr. 82.
13
The ALJ indicated that she does not allow counsel to ask questions that go to employability. Tr. 85. Thus, she
did not allow counsel to ask questions regarding employability where someone would be off task for a certain
percentage of time or where someone would be absent for a certain number of days. Tr. 84-85.
16
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 the claimant is not doing substantial gainful activity, his impairment
must be severe before he can be found to be disabled.
3.
If the claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, 15 the 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 the claimant’s impairment prevents him from doing past
relevant work. If the claimant’s impairment does not prevent him from
doing his past relevant work, he is not disabled.
5.
If the 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.
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).
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
17
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 her January 10, 2013, decision, the ALJ made the following findings: 17
1.
Brown met the insured status requirements through September 30, 2013.
Tr. 13.
2.
Brown had not engaged in substantial gainful activity since the alleged
onset date. Tr. 13.
3.
Brown had the following severe impairments: paraspinal abscess in
lumbar spine, asymptomatic human immunodeficiency virus (HIV)
infection, mood disorder secondary to HIV infection, posttraumatic stress
disorder, and obesity. Tr. 13.
4.
Brown did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments.
Tr. 14-16.
5.
Brown had the RFC to perform light work with restrictions – Brown
could lift and carry up to 20 pounds occasionally and 10 pounds
frequently; in an 8-hour workday, she could stand or walk for at least 6
hours and sit for at least 6 hours; she could not climb ladders, ropes, or
scaffolds, but could perform all other postural maneuvers on a frequent
basis; she could reach overhead bilaterally occasionally; she could work
above shoulder level bilaterally occasionally; she must avoid
concentrated exposure to vibration, e.g., no work on vibrating surfaces or
using vibrating tools; she must avoid unprotected heights and workplace
hazards; she could understand, remember and carry out simple
instructions, routine and repetitive tasks, and some detailed instructions
or tasks, but no complex or highly technical instructions or tasks; she
could only perform low-stress work, i.e., no high production or rapid
production quotas; she could perform work with only superficial
interaction with co-workers and supervisors; she could not perform work
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. The ALJ made findings with respect to the doctrine of res judicata under
Drummond v. Commissioner, 126 F.3d 837 (6th Cir. 1997) with respect to a prior ALJ decision dated June 23, 2009.
Tr. 10-11, 13. Brown does not take issue with the ALJ’s Drummond findings.
18
involving intense interpersonal aspects, i.e., no arbitration, negotiation,
confrontation, managerial responsibilities or responsibilities for the safety
of others. Tr. 16-23.
6.
Brown was unable to perform any past relevant work. Tr. 24-25.
7.
Brown was born in 1984 and was 24 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. Tr. 25.
8.
Brown had at least a high school education and was able to communicate
in English. Tr. 25.
9.
Transferability of job skills was not material to the determination of
disability. Tr. 25.
10.
Considering Brown’s age, education, work experience, and RFC, there
were other jobs that existed in significant numbers in the national
economy that Brown could perform, including mail clerk and final
inspector. Tr. 25-26.
Based on the foregoing, the ALJ determined that Brown had not been under a disability
from June 20, 2009, through the date of the decision. Tr. 26.
V. Parties’ Arguments
Brown’s sole contention is that the ALJ failed to properly evaluate the opinion of her
treating psychiatrist Dr. Wills under the treating physician rule. Doc. 17, pp. 10-14. In response,
the Commissioner argues that substantial evidence supports the ALJ’s mental RFC finding and
the ALJ adhered to the treating physician rule when evaluating Dr. Wills’ opinion. Doc. 19, pp.
7-13.
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
19
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 the Commissioner’s decision
“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).
Brown’s sole challenge relates to the weight the ALJ assigned to the opinion of her
treating psychiatrist Dr. Wills dated February 10, 2012. Doc. 17, pp. 10-14.
Under the treating physician rule, “[t]reating source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the
other substantial evidence in [the] case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c )(2)); see also Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004). If an ALJ decides to give a treating source’s opinion
less than controlling weight, she must give “good reasons” for doing so that are sufficiently
specific to make clear to any subsequent reviewers the weight given to the treating physician’s
opinion and the reasons for that weight. Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. In
20
deciding the weight given, the ALJ must consider factors such as (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 that tend to
support or contradict the opinion. Bowen v. Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir.
2007); 20 C.F.R. § 404.1527(c). However, while an ALJ’s decision must include “good reasons”
for the weight provided, the ALJ is not obliged to provide “an exhaustive factor-by-factor
analysis.” See Francis v. Comm’r of Soc. Sec., 414 Fed. Appx. 802, 804 (6th Cir. 2011).
Brown contends that the ALJ did not comply with the treating physician rule and “simply
discounted portions of Dr. Wills’ opinion while accepting the least restrictive limitations
contained in Dr. Wills’ assessment.” Doc. 17, p. 12. She argues that the ALJ erred because she
did not determine whether Dr. Wills’ opinion was “well-supported by clinical and laboratory
diagnostic techniques” and “not inconsistent with other substantial evidence of record;” did not
apply the factors under 20 C.F.R. § 404.1527(c) when determining how much weight to provide
Dr. Wills’ opinion; and the ALJ’s reasons for rejecting portions of Dr. Wills’ opinion were
insufficient. Doc. 17, pp. 12-13.
In reaching her decision, the ALJ considered the entirety of the record, including Dr.
Wills’ February 10, 2012, opinion regarding Brown’s functional limitations (Tr. 21). 18 Tr. 1026. When considering Dr. Wills’ opinion, the ALJ explained the weight provided to Dr. Wills’
opinion and the reasons for the weight assigned, stating:
I gave weight to Dr. Wills’ opinions to the extent that they establish that Ms.
Brown has limitations in her ability to understand, remember and carry out
complex tasks, deal with work stresses, relate appropriately with others in the
workplace, and maintain concentration, persistence or pace. I do not accept Dr.
18
The ALJ also considered the questionnaire completed by Dr. Wills on October 21, 2011. Tr. 20-21. Brown
identifies Dr. Wills’ February 10, 2012, Medical Source Statement as the relevant opinion. Doc. 17, p. 11.
21
Wills’ opinion that Ms. Brown is unable to interact appropriately with the general
public or that she is unable to maintain concentration, persistence of [sic] pace.
Ms. Brown’s ability to use public transportation, shop and work as a child care
provider at least through 2011 demonstrates the ability to engage in at least
superficial social interactions with the public. Ms. Brown’s ability to maintain
her household, prepare meals, care for her young children, and work part-time as
a childcare provider in 2010 and 2011 demonstrate the ability to maintain
concentration, persistence and pace for at least simple, routine tasks. I also note
that Dr. Wills’ assignment of a GAF score of 53, indicating moderate symptoms,
is inconsistent with the severity of limitations Dr. Wills opines. For these reasons,
I did not give full weight to Dr. Wills’ opinions.
Tr. 21.
Brown argues that, in Gayheart, 19 the Sixth Circuit recognized that there are two separate
analyses involved in weighing a treating source’s opinion and that the ALJ erred in this case
because, before applying the factors under 20 C.F.R. § 404.1527(c), the ALJ did not first
determine whether Dr. Wills’ opinion should be given controlling weight by looking at whether
Dr. Wills’ opinion was “well-supported by clinical and laboratory diagnostic techniques” and
“not inconsistent with other substantial evidence of record.” Doc. 17, pp. 11-12. The Sixth
Circuit in Gayheart did discuss there being two separate inquiries involved when determining the
appropriate weight to be assigned to a treating source’s opinion. Gayheart, 710 F.3d at 376-377.
However, Gayheart did not create a new interpretation of the treating physician rule. See AielloZak v. Comm’r of Soc. Sec., 47 F.Supp.3d 550, 55, 2014 WL 4660397, *4 (N.D. Ohio Sept. 17,
2014) (N.D. Ohio Sept. 17, 2014); Nichols v. Colvin, 2014 WL 7410024, *12 (N.D. Ohio Dec.
31, 2014)(noting, “[t]his Court has explained that Gayheart is not a new interpretation of the
treating source doctrine, but instead reinforces the Sixth Circuit’s prior holdings)(citing AielloZak, 2014 WL 4660397, at *4). Further, courts have also indicated that, where an “ALJ
adequately addresses the factors required by Gayheart and articulates good reasons for
19
The Sixth Circuit decided Gayheart on March 12, 2013, after the ALJ’s decision in this case issued. Tr. 7 (ALJ’s
decision dated January 10, 2013).
22
discounting the opinion of a treating source, the Commissioner’s decision will not be upset by a
failure to strictly follow the Gayheart template.” Aiello-Zak, 47 F.Supp.3d at 558 (relying on
Dyer v. Soc. Sec. Adm., 568 Fed. Appx. 422 (6th Cir. 2014)); see also Nichols, 2014 WL
7410024, *12 (quoting Aiello-Zak, 2014 WL 4660397, at *5).
Even if the ALJ did not separate her treating physician analysis of Dr. Wills’ opinion into
two clearly distinct analyses, the ALJ’s decision makes clear that the ALJ rejected certain
portions of Dr. Wills’ opinion because those severe limitations were inconsistent with other
substantial evidence. Tr. 21. The ALJ explained that she had provided weight to Dr. Wills’
opinion to the extent that Dr. Wills’ opinion established limitations in Brown’s ability to
understand, remember and carry out complex tasks, deal with work stresses, relate appropriately
with others in the workplace, and maintain concentration, persistence or pace. Tr. 21. The ALJ
also explained that she was providing less than full weight, i.e., not controlling weight, to those
portions of Dr. Wills’ opinion that were not consistent with other evidence of record. Tr. 21.
Brown challenges those reasons, arguing that the ALJ’s reliance on evidence concerning her
activities of daily living to reject portions of Dr. Wills’ opinion was faulty because Brown has
shown that she is unable to perform the activities cited by the ALJ on a sustained basis. Doc. 17,
pp. 12-13 (relying on Gayheart, 710 F.3d at 377). More particularly, she contends that her parttime work as a child care worker under the supervision of her aunt does not show an ability to
perform sustained competitive employment and, because her children were temporarily removed
from her home by Children Services, she is unable to adequately care for her children on a
sustained basis. 20 Doc. 17, pp. 12-13.
20
In her statement of facts, Brown references an incident in which she had recently hit someone on a bus. Doc. 17,
p. 2. Brown, however, does not clearly challenge the ALJ’s reliance on her ability to use public transportation based
on this incident nor does Brown raise specific challenges to the ALJ’s reliance upon or consideration of other
activities of daily living, including her ability to shop, maintain her household, and prepare meals. Also, she does
23
The ALJ explained that Brown’s ability to work as a part-time child care worker and care
for her children was inconsistent with Dr. Wills’ opinion because “Ms. Brown’s ability to . . .
work as a child care provider at least through 2011 demonstrates the ability to engage in at least
superficial social interactions with the public [and] Ms. Brown’s ability to . . . care for her young
children, and work part-time as a childcare provider in 2010 and 2011 demonstrate the ability to
maintain concentration, persistence and pace for at least simple, routine tasks.” Tr. 21. The
ALJ did not conclude that Brown’s activities of daily living supported no mental limitations.
Rather, the ALJ concluded that Brown’s mental limitations were not as restrictive as those
suggested by Dr. Wills.
In Gayheart, the Sixth Circuit concluded that the record did not support that the activities
cited by the ALJ as being inconsistent with a treating source’s opinion were activities that the
claimant could perform on a sustained basis. 21 Gayheart, 710 F.3d at 377 (indicating that,
“[s]ocial functioning refers to your capacity to interact independently, appropriately, effectively,
and on a sustained basis with other individuals”) (citing 20 C.F.R. § 404.1520a(c)(2) and quoting
20 C.F.R. Part 404, Subpart P, Appendix 1, at 12.00). However, in Dyer, decided after
Gayheart, the Sixth Circuit continued to recognize that a claimant’s daily activities can constitute
substantial evidence that a claimant is not disabled. Dyer, 568 Fed.Appx. at 427; see also AielloZak, 47 F.Supp.3d at 559 (relying on Dyer for the proposition that “findings concerning a
claimant’s daily activities can be sufficient reason to accord less weight to contradictory
conclusions in the opinion of a treating source”).
not challenge the ALJ’s other reason for assigning less than full weight to Dr. Wills’ opinion, i.e., “Dr. Wills’
assignment of a GAF score of 53, indicating moderate symptoms, is inconsistent with the severity of limitations Dr.
Wills opines.” Tr. 21.
21
The court also determined that the ALJ’s examples of daily activities were taken out of context or offset by other
examples in the record. Id. at 378.
24
Brown’s argument that, because her work as a child care worker was part-time and under
the supervision of her aunt, the ALJ was precluded from considering that activity when
evaluating the weight to assign to Dr. Wills’ opinion is without merit. As discussed above, an
ALJ is not precluded from considering a claimant’s daily activities when weighing a treating
source opinion. See Dyer, 568 Fed.Appx. at 427; see also Aiello-Zak, 47 F.Supp.3d at 559.
Further, Brown does not contend that, when working part-time, she was unable to sustain that
activity. To the extent that Brown suggests that the ALJ failed to take into account the fact that
her children were removed from her home and that such removal demonstrates an inability to
care for her children on a sustained basis, the Court finds that argument also without merit
because, when considering Brown’s mental impairment claim, the ALJ considered records
discussing the temporary removal of Brown’s children from her home. Tr. 20 (referencing
Exhibit 14F and Department of Child and Family Services mandated involvement of Catholic
Charities mental health services). Further, until the temporary removal of Brown’s children,
there was no indication that Brown was unable to care for her children 22 and, as acknowledged
by Brown, at the time of the hearing, she had regained custody of her children. Doc. 17, p. 13.
Brown also contends that the ALJ’s decision is unsupported by substantial evidence
because consultative examining psychologist Dr. House’s opinion was consistent with and
supports Dr. Wills’ opinion. Doc. 17, p. 13. However, the opinions of Dr. House and Dr. Wills
are not entirely consistent. For example, Dr. Wills opined that Brown was unable to interact
appropriately with the general public and unable to maintain socially appropriate behavior. Tr.
1215. In contrast, Dr. House opined that Brown was moderately limited in her ability to relate to
fellow workers and supervisors, but was not agoraphobic or completely unable to interact
22
For example, while working part-time in 2008, 2009, and 2010, Brown testified that she was able to get her oldest
son to school, get her younger children to daycare, and get herself to work. Tr. 63.
25
appropriately with the public or maintain socially appropriate behavior. Tr. 934. Moreover, the
ALJ considered Dr. House’s opinion along with the other evidence of record and did not give the
opinion full weight, stating:
I did not give full weight to Dr. House’s opinion as it is based on a one-time
examination and is inconsistent with the evidence as a whole. Ms. Brown’s
presentation before Dr. House was different from her presentation during an
initial evaluation at Murtis Taylor two months before. Ms. Brown told Dr.
Housse she could not perform serial seven subtractions, but performed them
without difficulty at the Murtis Taylor evaluation. She also demonstrated good
concentration and appropriate judgment. Although the record demonstrates some
limitations in Ms. Brown’s ability to withstand work stress and pressures and to
adapt, her reported daily activities of living indicate greater capacity than Dr.
House has opined.
Tr. 22. Brown does not challenge the ALJ’s consideration of or the weight assigned to Dr.
House’s opinion nor has she shown or that the ALJ’s rationale for the weight assigned to Dr.
House’s opinion is not supported by evidence.
Although Brown acknowledges that the state agency reviewing psychologists’ opinions
are inconsistent with Dr. Wills’ opinions, she argues that the ALJ erred in weighing Dr. Wills’
opinion because the ALJ failed to identify any psychiatric evidence inconsistent with Dr. Wills’
opinion and also contends that “conflicting substantial evidence must consist of more than the
medical opinions of the non-treating and non-examining doctors.” Doc. 17, p. 13 (relying on
Gayheart, 710 F.3d at 377). While not explicitly stating that the opinions of the state agency
reviewing psychologists were inconsistent with Dr. Wills’ opinion, the ALJ discussed and
considered those opinions and the inconsistencies between those opinions are clear. Compare
Tr. 21 (discussing Dr. Wills’ opinions) with Tr. 22-23 (discussing the state agency reviewing
psychologists’ opinions). With respect to Brown’s claim that substantial evidence must consist
of more than the medical opinions of non-treating/non-examining doctors, as discussed above,
when weighing Dr. Wills’ opinion, the ALJ relied upon Brown’s reported activities of daily
26
living as well as inconsistencies within Dr. Wills’ own opinion. Thus, the state agency
reviewing psychologists’ opinions were not the only evidence relied upon by the ALJ to support
his decision.
As discussed, the ALJ considered and weighed Dr. Wills’ opinion and explained her
rationale for providing less than full weight to Dr. Wills’ opinion. Brown has not shown that the
ALJ failed to provide sufficient explanation to allow for meaningful judicial review or that the
ALJ’s decision is not supported by substantial evidence. Thus, while the ALJ could have stated
more clearly which portions of her analysis regarding Dr. Wills’ opinion fell under which of the
two steps highlighted in Gayheart for analyzing treating physician opinions, the Court finds that
the ALJ satisfied the procedural requirements of the treating physician rule and provided good
reasons supported by substantial evidence for not providing full weight to Dr. Wills’ opinion.
See e.g., Aiello-Zak, 47 F.Supp.3d at 560-561 (affirming ALJ decision even though ALJ’s
handling of a treating source opinion “was not a textbook model of Gayheart compliance”). To
the extent that Brown relies on other evidence to support her contention that substantial evidence
supports her disability claim, the Court “may not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.” Garner, 745 F.2d at 387. Accordingly, even if
this Court would have viewed the evidence differently, where, as here, “substantial evidence also
supports the conclusion reached by the ALJ,” even “if substantial evidence or indeed a
preponderance of the evidence supports the claimant’s position,” the Court cannot overturn the
Commissioner’s decision. Jones, 336 F.3d at 477.
27
VII. Conclusion
For the reasons set forth herein, the Court AFFIRMS the Commissioner’s decision.
July 20, 2015
Kathleen B. Burke
United States Magistrate Judge
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?