Mays v. Commissioner of Social Security Administration
Filing
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Memorandum Opinion and Order remanding matter to Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. Magistrate Judge James R. Knepp, II on 4/21/15. (A,P)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
AMANDA MAYS,
Case Number 1:14 CV 800
Plaintiff,
Magistrate Judge James R. Knepp II
v.
MEMORANDUM OPINION AND
ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Amanda Mays filed a Complaint against the Commissioner of Social Security
seeking judicial review of the Commissioner’s decision to deny disability insurance benefits
(“DIB”) and supplemental security income (“SSI”). (Doc. 1). The district court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c). The parties have consented to the exercise of jurisdiction
by the undersigned in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 13). For the
reasons given below, the Court remands the Commissioner’s decision denying benefits.
PROCEDURAL BACKGROUND
On November 4, 2010, Plaintiff applied for DIB and SSI alleging disability since January
3, 2010. (Tr. 241-256). Plaintiff’s claims were denied initially (Tr. 183, 186) and on
reconsideration (Tr. 191, 194). Plaintiff then requested a hearing before an administrative law
judge (“ALJ”). (Tr. 197-98). On October 23, 2012, Plaintiff (represented by counsel) and a
vocational expert (“VE”) testified at a hearing, after which Plaintiff was found not disabled. (Tr.
91-113, 123-144). On February 26, 2014, the Appeals Council denied Plaintiff’s request for
review, making the hearing decision the final decision of the Commissioner. (Tr. 1-7); 20 C.F.R.
§§ 404.955, 404.981, 416.1455, 416.1481. On April 13, 2014, Plaintiff filed the instant case.
(Doc. 1).
FACTUAL BACKGROUND
Personal and Vocational Background
Born November 29, 1982, Plaintiff was 27 years old at the time of her alleged disability
onset date. (Tr. 241). She has a general equivalency diploma (“GED”), a State Tested Nurse
Aide (“STNA”) license, and at the time of the hearing, was in school learning to be a Dental
Assistant. (Tr. 128-29). She has past work experience as a deli clerk, waitress, home health
attendant, cashier, and hostess. (Tr. 141).
Medical Evidence
Physical Impairments
Plaintiff had a history lower back pain with radicular symptoms causing pain and
numbness to radiate into the left lower extremity. (Tr. 409). Plaintiff went to the MetroHealth
emergency room on April 20, 2011, four days after falling down steps and landing on her back.
(Tr. 414). An MRI of the lumbar spine taken after the accident on April 29, 2011, revealed very
mild disc disease in the inferior thoracic and inferior lumbosacral spine. (Tr. 409). Central/left
paracentral broad-based disk herniation was noted resulting in mild focal mass effect upon the
ventral thecal sac and mild mass effect upon the descending S1 nerve roots. (Tr. 410). A followup MRI was performed on August 17, 2011, revealing no significant changes. (Tr. 519).
Plaintiff first saw Peter Greco, M.D., on November 14, 2011, to request a referral for
bariatric surgery. (Tr. 448). Plaintiff reported being on Vicodin and that she had been prescribed
60 Vicodin pills in October, however, the Ohio automated prescription reporting system
indicated she was last prescribed fifteen pills in August. (Tr. 448). Plaintiff was also taking
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Voltaren. (Tr. 448). On examination, Plaintiff was morbidly obese with a body mass index of
47.5. (Tr. 448). Dr. Greco referred Plaintiff to weight management and bariatric surgery and
prescribed a higher dose of Voltaren but did not continue her on Vicodin. (Tr. 449).
On March 14, 2012, Plaintiff returned to Dr. Greco who discussed her physical
limitations with her. (Tr. 547). He diagnosed chronic sciatica and referred her to pain
management. (Tr. 548). Dr. Greco also completed a residual functional capacity (“RFC”)
assessment for Social Security Disability. (Tr. 412). He opined that Plaintiff was limited to
lifting/carrying no more than five pounds; standing/walking four to five hours total in a day with
interruptions every two to three hours; sitting four to five hours a day with interruptions every
hour; rarely climbing, crouching, or crawling; and occasionally balancing, stooping, or kneeling
on the right knee. (Tr. 412-13). He indicated Plaintiff would need additional breaks throughout
the workday and would require a sit/stand option. (Tr. 413).
Mental Impairments
On May 29, 2010, Plaintiff was admitted to Southwest General Health Center hospital
after she attempted suicide following an argument with her husband. (Tr. 312). Plaintiff reported
feeling anxious, depressed, tearful, hopeless, and tired with poor sleep. (Tr. 312). These
symptoms were exacerbated by her financial problems and learning her husband was having an
affair. (Tr. 312). Plaintiff had a history of marijuana use and past suicide attempts. (Tr. 312). She
tested positive for marijuana, ecstasy, and benzodiazepines. (Tr. 312). Upon her discharge
mental status examination, Plaintiff was well-groomed and behaved appropriately. (Tr. 313). Her
mood was very depressed, tearful and her speech had loose associations but was at the normal
rate and logical. (Tr. 313). Plaintiff was alert and oriented but displayed poor impulse control and
poor insight and judgment. (Tr. 313). She was discharged on June 1, 2010, with a plan to start an
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intensive outpatient program at Oakview. (Tr. 312-13). She had a Global Assessment of
Functioning (“GAF”) score of 551 at discharge. (Tr. 314).
On September 17, 2010, Plaintiff underwent an initial psychiatric evaluation at the Center
for Families and Children. (Tr. 349). Initially, she reported a history of depression and bipolar
disorder. (Tr. 349). On mental status examination, Plaintiff was clean and had a pleasant, bubbly
demeanor. (Tr. 349). Her eye contact and speech were normal, she was alert and oriented, and
her cognition was grossly intact. (Tr. 350). Plaintiff was diagnosed provisionally as suffering
from Bipolar II or Major Depression and assigned a GAF score of 52.2 She was prescribed
Lamictal titration and Celexa. (Tr. 351). Plaintiff continued to be seen at the Center throughout
2010 and into 2011 during which time, she struggled, particularly with sleeplessness, but her
mental status was otherwise stable with some improvement. (Tr. 352, 380-83).
On April 27, 2011, Nicole Pierson, LSW, completed a daily activities questionnaire for
Plaintiff. (Tr. 391-92). Ms. Pierson indicated Plaintiff lived independently with her three
children. (Tr. 391). Ms. Pierson said Plaintiff did not associate with anyone besides her children
and her fiancé and would only communicate with other family via Facebook. (Tr. 391). She
indicated Plaintiff could interact with co-workers and supervisors and had done so in the past,
but that she did not want to have contact with them. (Tr. 391). She said Plaintiff cooked, was
able to shop when her back was not bothering her, and bathed regularly although sometimes she
was hypervigilant and would take up to seven baths in a day. (Tr. 392). Plaintiff would avoid
1. The GAF scale represents a “clinician’s judgment” of an individual’s symptom severity or
level of functioning. American Psychiatric Association, Diagnostic & Statistical Manual of
Mental Disorders, 32-33 (4th ed., Text Rev. 2000) (DSM-IV-TR). A GAF score of 51-60
indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers and co-workers). Id., at 34.
2. See DSM-IV-TR, supra, note 1.
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public transportation because of other people but would occasionally drive a car. (Tr. 392). She
did not have a bank account because she did not trust banks. (Tr. 392).
On June 6, 2011, Plaintiff reported having periods of time she could not remember,
usually brought on by a fight with her husband or being very upset for some other reason. (Tr.
405). Plaintiff’s Lamictal and Citaprolam prescription doses were increased. (Tr. 405). In July
2011, Plaintiff reported having auditory hallucinations of a voice screaming in her head. (Tr.
404). She reported starting school but felt nervous around the other students because she felt like
they were talking about her. (Tr. 404). Her mental status exam was good with no sign of
delusions. (Tr. 404). Her dose of Lamictal was increased. (Tr. 404).
On August 8, 2011, K. Lole, M.D., completed a mental status questionnaire for Plaintiff.
(Tr. 399-401). Dr. Lole observed Plaintiff had good hygiene, fair grooming, and normal speech.
(Tr. 399). Plaintiff appeared tired but had a full affect and appeared to have a euthymic mood.
(Tr. 399). Dr. Lole said Plaintiff reported worrying but that it did not consistently interfere with
her daily activities and there were no signs of thought disorders, hallucinations, delusions, or
impaired memory. (Tr. 399). Dr. Lole opined Plaintiff would have some difficulty following
directions but could complete a task after repeat directions. (Tr. 400). Dr. Lole said Plaintiff had
no sign of impairment in her ability to maintain attention or sustain concentration, persistence, or
pace and that she should be able to complete simple, routine, repetitive tasks with limited ability
to handle situations with extreme pressure and stress. (Tr. 400).
From December 5, 2011 through December 7, 2011, Plaintiff was admitted to Lutheran
Hospital with a depressed mood and suicidal thoughts after she forgot to take her medication and
found a picture of her mother, who committed suicide. (Tr. 526). Her mental status examination
at discharge showed she was alert and oriented with normal speech, had a euthymic mood, and
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had no suicidal ideation. (Tr. 526). Plaintiff’s cognition, memory, concentration, and insight and
judgment were intact. (Tr. 527).
Kathleen Svala, M.D., completed a mental functional capacity report for Plaintiff on
March 26, 2011. (Tr. 501). Dr. Svala opined that Plaintiff’s ability to maintain attention and
concentration for extended two hour segments was poor as was her ability to interact with
supervisors and deal with work stresses. (Tr. 500). She also opined Plaintiff had a fair ability to
behave in an emotionally stable manner, relate predictably in social situations, manage funds and
schedules, leave home on her own, complete a normal workday and work week without
interruption from psychological symptoms, and to perform at a consistent pace without an
unreasonable number and length of rest periods. (Tr. 500-501). Further, Plaintiff had a fair ability
to remember and carry out complex or detailed job instructions, respond appropriately to changes
in a routine work setting, maintain regular attendance and be punctual within customary
tolerances, deal with the public, relate to coworkers, function independently without special
supervision, and work in coordination with or in proximity to others without being unduly
distracted or distracting. (Tr. 501). Dr. Svala opined that Plaintiff’s ability to follow work rules,
maintain appearance, and understand, remember and carry out simple job instructions was good.
(Tr. 501).
On May 12, 2011, state reviewing psychologist, Tonnie Hoyle, Psy.D., reviewed the
medical evidence of record and issued an opinion regarding Plaintiff’s ability to perform basic
mental work activities. (Tr. 162-67). Dr. Hoyle opined that Plaintiff was moderately limited in
her ability to interact appropriately with the general public, ask simple questions or request
assistance, accept instructions and respond appropriately to criticism from supervisors, and to get
along with coworkers or peers without distracting them or exhibiting behavioral extremes. (Tr.
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“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, the court
cannot overturn “so long as substantial evidence also supports the conclusion reached by the
ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for DIB and SSI is predicated on the existence of a disability. 42 U.S.C. §§
423(a); § 1382(a). “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.” 20 C.F.R. § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process – found at 20 C.F.R. §§ 404.1520 and
416.920 – to determine if a claimant is disabled:
1.
Was claimant engaged in a substantial gainful activity?
2.
Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which
substantially limits an individual’s ability to perform basic work
activities?
3.
Does the severe impairment meet one of the listed impairments?
4.
What is claimant’s residual functional capacity and can claimant perform
past relevant work?
5.
Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps
One through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five
to establish whether the claimant has the residual functional capacity to perform available work
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in the national economy. Id. The court considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f)
& 416.920(b)-(f); see also Walters, 127 F.3d at 529.
DISCUSSION
Plaintiff argues the ALJ erred (1) by failing to give proper weight to the opinions of her
treating physicians Drs. Greco and Svala; and (2) because his RFC assessment was not supported
by substantial evidence. (Doc. 16, at 12, 15). Each of these arguments will be addressed in turn.
The Treating Physician Rule
Generally, the medical opinions of treating physicians are afforded greater deference than
those of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007). A treating physician’s opinion is given “controlling weight” if it is supported by
“medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in the case record.” Id. When a treating physician’s opinion does not
meet these criteria, an ALJ must weigh medical opinions in the record based on certain factors.
Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660 (6th Cir. 2009) (citing 20 C.F.R. §
404.1527(d)(2)). These factors include the length of treatment relationship, the frequency of
examination, the nature and extent of the treatment relationship, the supportability of the opinion,
the consistency of the opinion with the record as a whole, and the specialization of the treating
source. Id.
Importantly, the ALJ must give “good reasons” for the weight given to a treating
physician’s opinion. Id. “Good reasons” are reasons “sufficiently specific to make clear to any
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subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.” Rogers, 486 F.3d at 242 (quoting SSR 96-2p, 1996 WL 374188,
at *4). “Good reasons” are required even when the conclusion of the ALJ may be justified based
on the record as a whole. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
The ALJ assessed Drs. Greco and Svala’s opinions as follows:
Peter Grecco, M.D., also a treating physician, completed a functional capacity
report. Dr. Greco stated that the [sic] can lift no more than 5 pounds, can stand or
walk for a total of 4-5 hours in an 8 hour workday, but only for 2-3 hours without
interruption. Additionally, he noted that she can sit for a total of 4-5 hours, but
without interruption for only 1 hour. Dr. Grecco also stated that the claimant can
never climb, crouch, or crawl, and can occasionally balance or stoop. (Ex. 10F)
The undersigned gave consideration to the opinion of Dr. Grecco. His opinion is
given some weight as a treating source.
Also, the claimant’s treating doctor, Kathleen Svala, M.D., completed a mental
functional capacity report of the claimant in March 2012. In this report, she
indicated that the claimant had poor ability to maintain attention and
concentration for extended periods of 2 hour segments, to interact with
supervisors, and deal with work stresses. She also opined the claimant had a fair
ability to behave in an emotionally stable manner, relate predictably in social
situations, manage funds and schedules, leave home on her own, to complete a
normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods, understand, remember and carry out complex or
detailed job instructions, respond appropriately to changes in routine work setting,
maintain regular attendance and be punctual within customary tolerances, deal
with the public, relate to coworkers, function independently without special
supervision, work in coordination with or proximity to others without being
unduly distracted or distracting. (Ex. 12F) The undersigned gave consideration to
the opinion of Dr. Svala. As a treating source, this opinion was given some, but
not controlling weight.
(Tr. 105-06).
Here, the ALJ summarizes the physicians’ opinions and provides that he is giving them
“some weight” but he does not provide good reasons or in fact any reason for the weight he
assigns them. Although Defendant argues the record shows the ALJ considered the record as a
whole in making his determination, the ALJ did not provide good reasons for the weight given
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which “denotes a lack of substantial evidence, even where the conclusions of the ALJ may be
justified based upon the record.” Rogers, 486 F.3d at 243.
However, the ALJ’s error can be excused if it is harmless. A violation of the treating
physician rule is harmless error if: (1) “a treating source’s opinion is so patently deficient that the
Commissioner could not possibly credit it”; (2) “if the Commissioner adopts the opinion of the
treating source or makes findings consistent with the opinion”; or (3) “where the Commissioner
has met the goal of § 1527(d)(2) – the provision of the procedural safeguard of reasons – even
though she has not complied with the terms of the regulation.” Wilson, 378 F.3d at 547.
In this case, neither Dr. Greco nor Dr. Svala’s opinion is “patently deficient” nor is this a
case where discussion elsewhere in the opinion makes it clear the basis on which Drs. Greco and
Svala’s opinions were rejected. Defendant tacitly argues for harmless error based on the second
excuse, because the ALJ has made finding consistent with the doctors’ opinions.
Defendant argues the ALJ incorporated Dr. Svala’s opinion that Plaintiff has poor ability
to maintain concentration for two hour segments, interact with supervisors, and deal with work
stressors by restricting Plaintiff to occasional, superficial contact with the public, co-workers,
and supervisors, and precluding her from any work requiring strict, fast-paced, daily production
quotas. (Doc. 18, at 8-9). Defendant further contends that while the ALJ may have failed to adopt
the concentration restriction, this was because he found it reasonable to be more restrictive in
other areas of functioning. (Doc. 18, at 8). Defendant points out that although Dr. Svala opined
that Plaintiff had a fair ability to work in coordination with and in proximity to others, the ALJ’s
limitation was more restrictive in that it only allowed her occasional, superficial contact with the
general public, co-workers, and supervisors. (Doc. 18, at 8-9).
However, this argument is not well-taken. In order for this Court to find harmless error,
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the ALJ must have adopted all of a treating physician’s opinion. Wilson, 378 F.3d at 548.
Limiting someone to jobs that do not require strict productions quotas does not fully address the
issue of poor concentration. Therefore, the ALJ did not adopt Dr. Svala’s opinion that Plaintiff
had poor concentration and remand is necessary in order for the ALJ to give good reasons for
only assigning some weight to Dr. Svala’s opinion.
Similarly, with Dr. Greco’s opinion, Defendant argues the ALJ placed similar or greater
limitations in all but two areas. (Doc. 18, at 10). Specifically, (1) the ALJ found Plaintiff could
lift and carry up to ten pounds when Dr. Greco had opined she only lift and carry up to five
pounds; and (2) he found Plaintiff could sit for up to six hours a day when Dr. Greco had opined
she could only sit for four to five hours a day. (Doc. 18, at 10). Apart from these two restrictions,
the ALJ adopted all of Dr. Greco’s findings. (Doc. 18, at 10). However, this piecemeal adoption
is not sufficient to alleviate the ALJ’s failure to provide good reasons. Harmless error is not
available when an ALJ finds limitations less severe than those described by the treating
physician. Wilson, 378 F.3d at 548.
Defendant further contends the ALJ found Plaintiff could lift up to ten pounds despite Dr.
Greco’s opinion because “Plaintiff herself testified that she could lift the greater amount of
weight” and Dr. Greco based his finding on a single, positive straight leg test when there were
negative findings elsewhere in the record. (Doc. 18, at 10). However, this reasoning is entirely
absent from the ALJ’s opinion. Thus, even when the record as a whole supports the ALJ’s
conclusion, “good reasons” must be clearly articulated. Wilson, 378 F.3d at 547.
In short, because harmless error is not appropriate, violation of the “good reasons” rule
requires remand. Wilson, 378 F.3d at 543-46; see also Rogers, 486 F.3d at 243. Therefore, the
Court remands this case for the ALJ to provide good reasons for rejecting the treating sources’
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opinions.
RFC Determination
While there may be substantial evidence in the record to support the ALJ’s RFC
determination, until the ALJ provides clearly sufficient reasons for only affording “some weight”
to the treating physicians’ opinions, the Court abstains from determining whether the RFC is
supported by substantial evidence.
CONCLUSION
Following review of the arguments presented, the record, and applicable law, the Court
finds the ALJ failed to follow the treating physician rule. Accordingly, this matter is remanded to
the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent
with this opinion.
IT IS SO ORDERED.
s/James R. Knepp, II
United States Magistrate Judge
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