Killings v. Commissioner of Social Security
Filing
24
Memorandum Opinion and Order affirming Commissioner's final decision. Magistrate Judge Nancy A. Vecchiarelli 5/17/16 (C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAKE KILLINGS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:15-CV-1290
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Defendant.
Plaintiff, Jake Killings (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”), denying
his application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. § 1381 et seq. (“Act”). This case is before the undersigned
United States Magistrate Judge pursuant to the consent of the parties entered under the
authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner’s
final decision is AFFIRMED.
I.
PROCEDURAL HISTORY
In February 2007, Plaintiff filed an application for SSI, alleging a disability onset
date of April 2004. (Transcript (“Tr.”) 746.) The claims were denied initially and upon
reconsideration, and Plaintiff requested a hearing before an administrative law judge
(“ALJ”). (Id.) The ALJ denied Plaintiff’s request, on the ground it was untimely and
Plaintiff had failed to establish good cause for missing the deadline. (Tr. 178-179.) On
February 12, 2009, the Appeals Council denied Plaintiff’s request to review the ALJ’s
dismissal of his hearing request. (Tr. 180-181.)
Plaintiff thereafter filed a complaint in this Court seeking a remand for the
purpose of obtaining an administrative hearing. See Killings v. Comm’r of Soc. Security,
Case No. 1:09CV845 (N.D. Ohio) (White, M.J.) On July 31, 2009, the parties stipulated
to remand the case to the Agency for a hearing. (Id. at Doc. No. 13.) Magistrate Judge
Greg White issued a Judgment Entry remanding the case on August 3, 2009. (Id. at
Doc. No. 14.)
On remand, ALJ Dennis LeBlanc held two hearings on Plaintiff’s application,1 on
September 10, 2010 and May 6, 2011. (Tr. 13.) Plaintiff participated in the hearings,
was represented by counsel, and testified. (Tr. 29-73, 100-149.) A vocational expert
(“VE”) also participated and testified at both hearings, and a medical expert (“ME”)
testified at the May 6, 2011 hearing. (Id.) On June 8, 2011, the ALJ found Plaintiff not
disabled. (Tr. 13-22.) On January 6, 2012, the Appeals Council declined to review the
ALJ’s decision, and the ALJ’s decision became the Commissioner’s final decision. (Tr.
900-902.)
On February 28, 2012, Plaintiff filed a civil action in this Court to challenge the
Commissioner’s final decision. See Killings v. Comm’r of Soc. Sec., Case No.
1:12CV479 (N.D. Ohio) (Vecchiarelli, M.J.) On November 6, 2012, the undersigned
magistrate judge (to whom the parties had consented) issued a Memorandum Opinion
& Order that the June 8, 2011 ALJ decision be reversed and the case remanded for
further proceedings. (Id. at Doc. No. 20.) In particular, the undersigned ordered as
1
The Commissioner asserts the proceedings before ALJ Blanc related to a
subsequent application filed by Plaintiff on May 18, 2009. (Doc. No. 22 at 2.)
However, ALJ Blanc’s June 8, 2011 decision specifically states that it relates to
Plaintiff’s February 9, 2007 application. (Tr. 13.)
2
follows:
For the reasons given above, the court REVERSES the decision of the
Commissioner and REMANDS this case to the ALJ for the following:
1. The ALJ must clarify whether Dr. Zeck’s comment that the full scale
score was a “minimal estimate” meant that all of Killings’ WAIS-IV scores
were invalid. If that is the case, the ALJ must obtain a valid intelligence
test score. If not, the ALJ must use the verbal comprehension score of 66
in determining whether Killings meets the Listing at 12.05(c). In either
case, the ALJ must reconsider whether Killings meets that Listing.
2. The ALJ must reconsider whether the opinions of Dr. Plank should be
given controlling weight and, if not, give good reasons for not doing so.
3. The ALJ must rephrase the hypothetical question to the VE to eliminate
the restriction to a supposed individual who must avoid only
“concentrated” hazards.
IT IS SO ORDERED.
(Id. at Doc. No. 20 at 27.)
On January 14, 2013, the Appeals Council remanded the case to the hearing
level for further proceedings.2 (Tr. 1043.) The case was assigned to ALJ Penny
Loucas, who conducted a hearing on June 18, 2013. (Tr. 773-871.) Plaintiff
participated in the hearing, was represented by counsel, and testified. (Id.) A VE also
participated and testified. (Id.) On August 30, 2013, the ALJ found Plaintiff not
disabled. (Tr. 746-763.) On April 29, 2015, the Appeals Council declined to assume
2
In its Order, the Appeals Council noted as follows: “The claimant filed
subsequent claims for benefits on March 27, 2012. The Appeals Council’s
action with respect to the current claim renders the subsequent claim duplicate.
Therefore, the Administrative Law Judge will associate the claim files and issue a
new decision on the associated claims. In compliance with the above, the
Administrative Law Judge will offer the claimant the opportunity for a hearing,
take any further action needed to complete the administrative record and issue a
new decision.” (Tr. 1043.)
3
jurisdiction, and the ALJ’s decision became the Commissioner’s final decision. (Tr. 719724.)
On June 29, 2015, Plaintiff filed his complaint to challenge the Commissioner’s
final decision.3 (Doc. No. 1.) The parties have completed briefing in this case. (Doc.
Nos. 20, 22, 23.)
Plaintiff asserts the following assignments of error:
1.
The ALJ’s decision violates the Court’s remand Order in three
respects:
a.
This Court ordered that Listing 12.05C for intellectual
disability is not inconsistent with a diagnosis of Borderline
Intellectual Functioning, yet the ALJ’s decision repeated the
error.
b.
This Court found that Killings attended special education,
yet the ALJ’s new decision denied that fact.
c.
The Court’ s order plainly stated, “the ALJ must re-ask the
hypothetical question [about exposure to hazards] to the
VE, rephrasing the question to eliminate the restriction to an
individual who must avoid only “concentrated” hazards. The
ALJ failed to re-ask the hypothetical question eliminating the
word “concentrated.” The ALJ’s decision instead omitted
any restriction on hazards, without explanation.
2.
The ALJ’s decision finding of literacy is not supported by
substantial evidence. This error affects the Listing 12.05C finding
and the completeness of the hypothetical question.
3.
CE Evans reported that Killings “would have significant difficulties
performing multistep tasks in a workplace environment.” The ALJ
gave “great weight” to CE Evans, yet without explanation omitted a
3
On June 29, 2015, Plaintiff filed a motion to reassign this matter to Judge
Nugent (who was the assigned District Judge in the previous appeal, prior to the
parties’ consent) and the undersigned magistrate judge. (Doc. No. 3.) The
motion was granted in July 2015. See Doc. No. 6 and Non-Document Order
dated July 15, 2015.
4
restriction against multistep tasks.
4.
Regarding physical limitations, the decision violated the agency’s
treating-physician rule by rejecting the reports of Dr. Plank without
good reasons.
5.
Not only treating physician Plank, but also testifying medical expert
Dr. Brahms and two State-agency reviewing doctors reported that
Killings was limited to only 2-4 hours per day standing. The
decision found that Killings could stand for 6 hours. The decision
did not give a satisfactory explanation for rejecting the opinions of
these doctors.
(Doc. No. 20.)
II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was born in July 1965 and was 38 years old on the alleged disability
onset date and 41 years old when the application was filed. (Tr. 761, 999.) He had at
least a high school education and was able to communicate in English. (Tr. 761) He
had past relevant work as a kitchen helper and a cleaner. (Id.)
B.
Medical Evidence
1.
Medical Reports
The medical evidence through the date of the previous ALJ decision (June 8,
2011) is thoroughly and accurately set forth in Section II.B of the Memorandum Opinion
& Order issued by the undersigned magistrate judge in Killings v. Comm’r of Soc. Sec.,
Case No. 1:12CV0479 (N.D. Ohio) (Doc. No. 20.) The Court will not repeat this medical
evidence but, rather, incorporates that section of the undersigned’s previous Opinion,
which is attached as an appendix hereto.
With regard to the medical evidence post-dating the previous ALJ decision, the
5
record reflects the following.4 On August 1, 2011, Plaintiff presented to the emergency
room (“ER”) with suicidal thoughts. (Tr. 1181-1194.) He reported contemplating
“jumping off a bridge” due to his mother’s poor health and his financial problems. (Tr.
1189.) The ER nurse noted congruent affect, cooperative behavior, and normal speech,
thought process, and thought content. (Tr. 1190-1191.) She also noted “average”
intelligence. (Tr. 1191.) Plaintiff was diagnosed with adjustment disorder and
discharged with a referral to the Nord Center for mental health counseling. (Tr. 1184,
1188.)
Plaintiff presented to the Nord Center for an Adult Diagnostic Assessment by
Bonnie Adams, LSW, on August 8, 2011. (Tr. 1202-1211.) He complained of “very bad
depression” and reported crying spells, irritability, anger, and suicidal thoughts. (Tr.
1202.) The Assessment contains a notation that Plaintiff reported a “past manipulation
of [the mental health] system while in prison,” indicating he reported “he was
[diagnosed] with schizophrenia so he would not have to be with general population.”
(Tr. 1204.) As for physical health problems, Plaintiff stated he had “arthritis in half of
[his] body,” causing him difficulty getting out of bed on three occasions. (Tr. 12071208.)
On examination, Ms. Adams found Plaintiff presented as “pleasant, euthymic,
calm, and cooperative,” with a logical thought process and full affect. (Tr. 1209.) She
estimated his intelligence level to be “average.” (Tr. 1211.) Ms. Adams diagnosed
4
Plaintiff’s grounds for relief relate principally to his lower back and knee pain,
and alleged illiteracy and low cognitive functioning. Thus, the Court will recount
only the record evidence regarding these issues.
6
depressive disorder and assessed a Global Assessment of Functioning (“GAF”)5 score
of 61, indicating mild symptoms. (Tr. 1209-1210.) The record reflects Plaintiff
thereafter presented for counseling sessions at the Nord Center in November and
December 2011. (Tr. 1215-1218.)
On December 28, 2011, Plaintiff presented to the ER with complaints of left sided
back and leg pain. (Tr. 1219-1231.) He underwent an MRI of his lumbar spine which
showed, in relevant part, the following:
Vertebral bodies are normal in signal and height. Degenerative changes
at the displaces are noted throughout the lumbar spine from L1 down to
L4.
L2- L3: Left paramedian extruded disk at this level significantly effaces the
thecal sac compromising the transiting left L3 nerve root in its lateral
recess. Left L2 nerve root escapes uncompromised.
L4-L5: A broad-based disk protrusion at this level effaces the thecal sac
anteriorly in the midline and slightly more on the left side than the right.
There is some compromise of the transiting L5 nerve root left side at this
level. The L4 nerve root escapes uncompromised. There is mild
narrowing of the central canal at this level felt to be less than 25%.
No significant extradural defect seen at L1-L2, L3-L4, and L5-S1. The
conus is normal caliber and signal and terminates at the T12 L1 level.
The paraspinal soft tissues unremarkable.
(Tr. 1228.) Plaintiff also underwent an x-ray of his lumbar spine, which showed
degenerative changes without evidence of fracture. (Tr. 1230.) Plaintiff was diagnosed
5
The GAF scale reports a clinician’s assessment of an individual’s overall level
of functioning. An individual’s GAF is rated between 0-100, with lower numbers
indicating more severe mental impairments. A GAF score between 61 and 70
indicates mild symptoms or mild difficulty in social, occupational, or
school functioning. A recent update of the DSM eliminated the GAF scale
because of “its conceptual lack of clarity . . . and questionable psychometrics in
routine practice.” See Diagnostic and Statistical Manual of Mental Disorders
(DSM-5) at 16 (American Psychiatric Ass’n, 5th ed., 2013).
7
with lumbar disk herniation and discharged with pain medication. (Tr. 1224-1226.)
Plaintiff followed up with his primary care physician the next day. (Tr. 1246.) His
physician (whose name is illegible) noted full strength, negative straight leg raising, and
a “very good response to NSAID.” (Id.) He diagnosed a lumbar strain and advised
Plaintiff to return in two weeks if the pain had not resolved. (Id.)
Plaintiff returned approximately two weeks later, on January 10, 2012. (Tr.
1244.) He still complained of “lots of pain,” but stated it was “better lying down.” (Id.)
His physician noted Plaintiff’s lumbar strain was “resolving.” (Id.) In February 2012,
Plaintiff reported his “back pain seems to be improving but still c/o occasional slight
pains going up spine, mostly when laying down.” (Tr. 1239.) In May 2012, Plaintiff
does not appear to have reported back pain and indicated he was doing Taebo for
exercise. (Tr. 1237.)
The record indicates Plaintiff received treatment for lower extremity edema and
numbness in June 2012, although this appears to be related primarily to his diabetes.
(Tr. 1296-1300.) In September 2012, Plaintiff complained of numbness in his right thigh
“when he stands for long periods of time or going from a sitting to standing position.”
(Tr. 1291.) Jason Ridgel, M.D., noted normal strength and tone, normal deep tendon
reflexes, normal lumbar range of motion, and negative straight leg raise. (Id.) Dr.
Ridgel assessed lumbar region strain/sprain, prescribed Etodolac, and recommended
stretching and heat to the affected area. (Id.)
In October 2012, Plaintiff complained of piercing, lower back pain “in a persistent
pattern for 3 weeks.” (Tr. 1288.) He reported aggravation with lifting, prolonged
standing and prolonged sitting. (Id.) On examination, Dr. Ridgel noted “bilateral8
straight leg raise normal, normal strength and tone, no laxity or crepitus, normal lumbar
spine movements, sensation normal and tenderness to palpation (left muscles).” (Id.)
Dr. Ridgel diagnosed lumbar region sprain/strain and prescribed pain medication. (Id.)
Plaintiff underwent an x-ray of his lumbar spine on October 22, 2012, which
showed “multilevel degenerative changes as well as degenerative changes in the
posterior facets of the lower lumbar spine.” (Tr. 1313.) No acute fracture or
spondylolysis was noted. (Id.)
In March 2013, Plaintiff reported exercising regularly. (Tr. 1315.) He reported
joint pain, but denied muscle aches. (Id.) On examination, Vikramjeet Kumar, M.D.,
noted no muscular tenderness. (Tr. 1316.)
2.
Agency Reports
a.
Physical Impairments
On August 5, 2009, state agency physician Esberdado Villaneuva, M.D.,
reviewed Plaintiff’s medical records and completed a Residual Functional Capacity
(“RFC”) Assessment regarding his physical impairments. (Tr. 547-54.) According to
Dr. Villaneuva, Plaintiff was capable of lifting 20 pounds occasionally and 10 pounds
frequently; standing and/or walking for a total of four hours in an eight-hour work day;
sitting for a total of about six hours in an eight-hour work day; and pushing or pulling
without limitation. (Tr. 548-549.) Dr. Villaneuva cited the results of x-rays taken on
December 31, 2007, October 10, 2008, and December 16, 2008 of Plaintiff’s lumbar
spine, feet, and knees as supporting his conclusions. (Tr. 548-549.) Dr. Villaneuva also
opined Plaintiff was able to frequently climb ramps and stairs; frequently stoop; and
occasionally kneel, crouch, and crawl. (Tr. 549.) He further found Plaintiff should never
9
climb ladders, ropes, or scaffolds; and should avoid concentrated exposure to hazards.
(Tr. 549, 551.)
On December 31, 2009, state agency physician W. Jerry McCloud, M.D.,
reviewed Plaintiff’s medical records, noted Plaintiff had not alleged a worsening of his
condition, and affirmed Dr. Villaneuva’s assessment. (Tr. 579.)
Subsequently, on October 3, 2012, state agency physician Dimitri Teague, M.D.,
reviewed Plaintiff’s medical records and completed an RFC assessment of Plaintiff’s
physical impairments.6 (Tr. 1006-1007.) Dr. Teague opined as follows:
The RFC given is an adoption of the ALJ RFC dated June 8, 2011. The
RFC is being adopted under AR 98-4 (Drummond Ruling).
Can perform light work, except stand and/or walk 4 hours of an 8 hour
workday; sit for 6 hours of an 8-hour [workday]; freq climb ramps and
stairs (but ladders, ropes and scaffolds), frequently stoop; occasionally
kneel, crouch, and crawl; he would need to avoid hazards such as
dangerous machinery or unprotected heights.
(Id.)7
b.
Mental Impairments
On December 16, 2010, psychologist Thomas F. Zeck, Ph.D., performed a
consultative examination of Plaintiff at the request of the ALJ. (Tr. 638- 643.) Plaintiff
6
Although noting that Dr. Teague rendered his opinion in connection with a
subsequent disability application filed by the Plaintiff, the ALJ nonetheless
considered Dr. Teague’s opinion and gave it “considerable weight” with the
exception that she did not adopt Dr. Teague’s opinions that Plaintiff could only
stand and/or walk for 4 hours in an 8 hour day and must avoid hazards. (Tr.
758.)
7
The record also contains a physical RFC assessment from state agency
physician Leon Hughes, M.D., dated May 25, 2012. (Tr. 993.) The ALJ does not
specifically mention Dr. Hughes’ opinion; however, it is identical to the October
2012 opinion of Dr. Teague.
10
reported he did not drive, as his license was suspended after an accident in 1983. (Tr.
638.) He stated he was seeking disability benefits due to knee trouble since 1984 and
back trouble since 1998. (Id.) Plaintiff also reported he had been told he might need
surgery for his back but that he rejected surgery as an option. (Id.) Plaintiff was vague
and uncertain regarding much of his medical history and his condition. He reported he
last worked in 2003 at the Texas Roadhouse and was fired when his employer
discovered he had a felony conviction. (Tr. 640.) Plaintiff did, however, mention a work
attempt in 2008. Although Plaintiff reported his back was sore during the interview, Dr.
Zeck did not note any signs of discomfort. (Id.)
Dr. Zeck found Plaintiff to be rambling and verbose, but relevant and coherent.
(Id.) Dr. Zeck also found him to be completely oriented, capable of counting backwards
from 20 and capable of counting serial threes, although Plaintiff made four mistakes in
counting serial sevens. (Tr. 641.) He was able to give five digits forward and three
digits backward. (Id.) Plaintiff could not recall any of three items after five minutes;
could not interpret any of the proverbs given him; and displayed borderline
concentration, rote memory, immediate recall, reasoning ability, abstract thinking,
logical thinking, and insight and judgment. (Id.) Plaintiff reported feeding his children,
doing dishes, cooking, and cleaning but denied doing laundry or shopping. (Id.) He
enjoyed fishing and watching football and occasionally went to church and visited
friends. (Id.)
Dr. Zeck administered the Wechsler Adult Intelligence Scale–IV (“WAIS–IV”) and
reviewed the results of an IQ test that Plaintiff had taken in 1998. (Tr. 641.) Plaintiff
achieved a verbal comprehension score of 66, a perceptual reasoning score of 79, a
11
working memory score of 74, a processing speed score of 71, and a full scale score of
67. (Id.) Dr. Zeck summarized Plaintiff’s condition as follows:
[T]he results of this evaluation indicate that Jake Killings is applying for
social security primarily because he states that he has problems with his
lower back and has arthritis in his knees. Both of these things keep him
from being gainfully employed because he cannot do much in the way of
physical work.
He has evidently refused surgery according to what he stated but no
information was supplied regarding his injury or his diagnosis....
His speech was relevant and coherent although he was rambling at times.
He does appear to be somewhat depressed because he is not working, he
is not contributing, and he has financial issues.
His judgment and reasoning abilities were within the borderline range.
Intellectually, it is felt that he is likely to fall within the borderline range
even though he had a WAIS–IV of 67.
(Tr. 642.) Dr. Zeck attributed Plaintiff’s full scale IQ score of 67, in part, to the fact that
he “seemed tentative, hesitant, and lacking confidence in himself and his abilities.” (Id.)
For this reason, Dr. Zeck described Plaintiff’s full scale score of 67 as a “minimal
estimate of his intellectual functioning.” (Id.)
In assessing Plaintiff’s work-related abilities, Dr. Zeck wrote in relevant part as
follows:
1. This claimant's mental ability to relate to others including fellow workers
and supervisors is felt to be adequate. He was friendly and basically
cooperative during this evaluation and offered no resistance or hostility.
2. This claimant's mental ability to understand, remember, and follow
instructions appears to be moderately impaired as he appears to fall within
the borderline range of intelligence classification. He was borderline in his
concentration, rote memory, and immediate recall. He was also borderline
in his general comprehension abilities in terms of his responses to
hypothetical judgment situations.
12
3. This claimant's mental ability to maintain attention, concentration,
persistence, and pace to perform simple repetitive tasks did not appear to
be impaired. There did not appear to be any significant problems that
would suggest that he does have an inability in this area.
4. This claimant's mental ability to withstand the stress and pressures of a
day to day work activity may be mildly to moderately impaired by his
physical condition. It may be difficult for him to put forth a 40 hour work
week at this particular time. He might be given an opportunity to perform
and see how well he does.
(Tr. 643.)
On September 27, 2012, state agency psychologist Todd Finnerty, Psy.D.,
reviewed Plaintiff’s medical records and completed a psychiatric review technique and
RFC assessment regarding his mental impairments.8 (Tr. 1005-1008.) He found
Plaintiff had mild restrictions in activities of daily living; mild restrictions in social
functioning; moderate restrictions in maintaining concentration, persistence, or pace;
and no repeated episodes of decompensation. (Tr. 1005.) Dr. Finnerty concluded
Plaintiff was moderately limited in his abilities to (1) remember locations and work-like
procedures; (2) understand, remember, and carry out detailed instructions; (3) maintain
attention and concentration for extended periods; (4) complete a normal workday and
workweek without interruption from psychologically based symptoms and perform at a
consistent pace without an unreasonable number and length of rest periods; (5)
respond appropriately to changes in the work setting; and (6) set realistic goals or make
plans independently of others. (Tr. 1007-1008.)
8
The ALJ noted that Dr. Finnerty “gave [his] opinion during a subsequent
application, but this opinion is highly relevant to [Plaintiff’s] current functioning.”
(Tr. 757.) The ALJ gave “great weight” to Dr. Finnerty’s opinion and stated that
“it is the basis for the mental limitations of this finding, as it is consistent with all
mental status testing and the GAF scores from all providers.” (Id.)
13
In the narrative section of his report, Dr. Finnerty noted Plaintiff has a diagnosis
of borderline intellectual functioning, a full scale IQ of 67, and “would need to perform
simple, routine tasks.” (Tr. 1007.) He also found Plaintiff “would need to work static
tasks,” where “he is not held to demands for a rapid pace” and “changes in job duties
are infrequent.” (Tr. 1008.) Finally, Dr. Finnerty stated:
I have looked at the final findings of the ALJ MFRC from 06/08/11 and find
that the new file does have new and material changes. The ALJ MFRC is
not being adopted because there are some new affective complaints that
were not taken into consideration during the ALJ’s decision. The clmnt
has since started some counseling for his condition and has [diagnosis] of
adjustment [disorder] in addition to his learning disability.
(Tr. 1008.)9
On February 28, 2013, Plaintiff underwent a consultative psychological
examination with Thomas M. Evans, Ph.D. (Tr. 1272-1280.) Plaintiff reported suffering
from diabetes, arthritis, high blood pressure, cholesterol, and chronic lower back pain.
(Tr. 1276.) He indicated he was seeking disability because he “pulled two discs in [his]
back.” (Tr. 1275.) Plaintiff stated he was placed in special education classes in the
second grade. (Tr. 1276.) He claimed he had been psychiatrically hospitalized on three
occasions, mostly recently for suicidal ideation. (Id.) He reported suffering from
depression since 2001, with symptoms that included depressed mood, fatigue, lack of
motivation, irritability, and crying episodes. (Tr. 1276-1277.)
With regard to his activities of daily living, Plaintiff stated that he and his wife did
9
The record also contains a psychiatric review technique and mental RFC
assessment from state agency psychologist Jennifer Swain, Psy.D, dated May
23, 2012. (Tr. 991-995.) The ALJ does not specifically mention Dr. Swain’s
opinion; however, it is substantially similar to the September 2012 opinion of Dr.
Finnerty.
14
the cooking, cleaning, and grocery shopping together. (Tr. 1277.) He described his
typical day as follows: “I read the Bible, watch television, and do household chores.”
(Id.) He reported that he did not have a driver’s license. (Id.)
On examination, Dr. Evans noted Plaintiff was fully oriented to person, place and
time, and his grooming and hygiene were good. (Id.) Plaintiff ambulated within normal
limits, “sat comfortably in his seat throughout the entire evaluation, and did not appear
to be in any physical distress.” (Id.) His eye contact and speech were normal, and Dr.
Evans did not observe any evidence of anxiety or psychosis. (Id.) Plaintiff could spell
the word “world” forwards and backwards; could recall three out of three words after a
five minute delay; and could recite five digits forward and four digits backwards. (Id.)
Dr. Evans found Plaintiff’s insight and judgment to be adequate. (Id.)
Dr. Evans administered the WAIS-IV. (Tr. 1278.) Plaintiff achieved a verbal
comprehension score of 63, a perceptual reasoning score of 75, a working memory
score of 69, a processing speed score of 74, and a full scale score of 65. (Id.) Dr.
Evans concluded as follows:
Mr. Killings’ Full Scale IQ Score of 65 places him in the extremely low
classification, and at the first percentile. Subtest scatter is not significant.
All scores are well below average. At the 90% confidence level interval,
his true full scale IQ score is likely to fall between 62 and 69. Based upon
his diligence and persistence during testing this is believed to be a valid
and reliable estimate of his current level of functioning.
(Id.) He diagnosed depressive disorder and cognitive disorder, and assessed a GAF
score of 55, indicating moderate symptoms.10 (Id.)
10
A GAF score between 51 and 60 indicates moderate symptoms or moderate
difficulty in social, occupational, or school functioning.
15
Based on his Full Scale IQ score, Dr. Evans determined Plaintiff would have
“significant difficulties remembering and carrying out complex instructions in workplace
setting,” but “does appear to be capable of completing simple instructions.” (Tr. 1279.)
He found Plaintiff displayed good attention, concentration, and focus during the
evaluation; however, “his score on the working memory index suggests that he would
have significant difficulties performing multi-step tasks in a workplace setting.” (Id.)
Dr. Evans noted no limitations in responding appropriately to supervision and
coworkers. (Id.) He concluded that Plaintiff’s “mood disorder, in and of itself, would not
appear to prohibit employment at this time as it appears to be mild.” (Id.)
In a check-box form accompanying his written report, Dr. Evans opined that
Plaintiff was markedly limited in his abilities to (1) understand, remember, and carry out
complex instructions; and (2) make judgments on complex work-related decisions. (Tr.
1272.) He found Plaintiff was only mildly limited in his abilities to understand,
remember, and carry out simple instructions and make judgments on simple workrelated decisions. (Id.)
C.
Hearing Testimony
1.
Plaintiff’s Hearing Testimony
a. September 2010 and May 2011 hearings
Plaintiff’s testimony at the September 2010 and May 2011 hearings is thoroughly
and accurately set forth in Section II.C of the Memorandum Opinion & Order issued by
the undersigned magistrate judge in Killings v. Comm’r of Soc. Sec., Case No.
1:12CV0479 (N.D. Ohio) (Doc. No. 20.) The Court will not repeat its summary of this
16
testimony but, rather, incorporates that section of the undersigned’s previous Opinion,
which is attached as an appendix hereto.
b.
June 18, 2013 hearing
During the June 18, 2013 hearing, Plaintiff testified to the following:
•
He completed the twelfth grade and was in special education classes
throughout high school. (Tr. 783.) He learned to read and write “just a
little.” (Tr. 806.) He was not able to write a grocery list or a letter well
enough for someone else to understand it. (Id.) He was not able to read
and comprehend a newspaper. (Id.) His ability to read and write has not
improved since graduating from high school. (Tr. 807.)
•
He is able to add and subtract “just a little.” (Tr. 813.) He cannot make
change and just has to trust that people are giving him the correct change.
(Id.)
•
He did not work during high school; however, one of his classes involved
selling candy to his classmates. (Tr. 784-786.) He did not attend any
school activities because he was “picked on” for being in special education
classes. (Tr. 789-790.)
•
During the years he was in school, he dressed and bathed himself and
brushed his own teeth. (Tr. 786-787.) He walked to school with his
siblings and, as a general matter, did not encounter any difficulties getting
to school. (Tr. 788.) He did not have any problems getting along with his
classmates. (Tr. 788.)
•
He took a driver’s test six months after he graduated from high school. He
did not pass because he was unable to read and write. (Tr. 811.)
•
He had a series of temporary cleaning jobs after graduating from high
school. (Tr. 795-797.) In 2002 or 2003, he got a job as a dishwasher at
Texas Roadhouse. (Tr. 798.) His wife helped him fill out the application.
(Id.) During the job interview, he was given a quiz but did not pass it. He
was allowed, however, to take the quiz home and work on it with his wife.
(Tr. 799.) He was hired for the job, and worked there for two and one half
to three years. (Tr. 800.) He was fired when his employer discovered he
had a felony conviction for domestic violence and carrying a concealed
weapon. (Id.)
•
He is currently married and has two children, ages 4 and 10. (Tr. 801802.) He wife does not work. (Id.) He spends time with his children and
17
changed their diapers when they were little. (Tr. 803.)
2.
Medical Expert Testimony
There was no ME testimony during either the September 10, 2010 or the June
18, 2013 hearings. During the May 6, 2011 hearing, orthopedic surgeon Malcolm
Brahms, M.D., testified regarding Plaintiff’s physical impairments. (Tr. 32-39.) Dr.
Brahms stated Plaintiff is a “morbidly obese individual, who’s a diabetic, claims to have
hypertension, migraine headaches, abdominal pain, foot problems, knee problems, and
headaches.” (Tr. 36.) He opined Plaintiff does not meet or equal a Listing and “is
capable of performing light duty.” (Tr. 38.) Upon further questioning, Dr. Brahms
explained as follows:
Q:
All right. And as far as Exh. 9F,11 you said you agree with the
opinion stated in that exhibit?
A:
I do.
Q:
But that exhibit specifically limits the claimant in this case to two
hours of – or excuse me, I think they indicated four hours of
standing and walking in an eight hour day. What is your opinion
with regard to the claimant’s capacity for standing and walking
throughout an eight hour day?
A:
Oh, without question he’s capable of at least four hours of standing
and walking.
Q:
So you agree with the assessment of four hours of an eight hour
day?
A:
I do.
(Tr. 38-39.)
11
Exhibit 9F is the Physical Residual Functional Capacity Assessment completed
by state agency physician Esberdado Villanueva, M.D. , on August 5, 2009. (Tr.
547-554.)
18
3.
Vocational Expert’s Hearing Testimony
a.
September 10, 2010 and May 6, 2011 hearings
The Vocational Experts’ testimony at the September 2010 and May 2011
hearings is thoroughly and accurately set forth in Section II.C of the Memorandum
Opinion & Order issued by the undersigned magistrate judge in Killings v. Comm’r of
Soc. Sec., Case No. 1:12CV0479 (N.D. Ohio) (Doc. No. 20.) The Court will not repeat
its summary of this testimony but, rather, incorporates that section of the undersigned’s
previous Opinion, which is attached as an appendix hereto.
b.
June 18, 2013 Hearing
During the June 18, 2013 hearing, the VE testified Plaintiff had past relevant
work as a kitchen helper (DOT 318.687-010) (medium, unskilled, SVP 2) and cleaner,
housekeeper (DOT 323.687-014) (light, unskilled, SVP 2). (Tr. 819, 823-824.) The
ALJ then posed the following hypothetical:
I want you to assume an individual similar to the claimant in age,
education, and work history, who can engage in medium exertion; who is
limited to occasional climbing of ramps and stairs, and occasional
ladders, ropes, and scaffolds; who can frequently stoop; occasionally
kneel, crouch and crawl. As for mental, this individual can carry out– can
understand, remember and carry out simple instructions consistent with
performing unskilled work. This individual can maintain concentration,
persistence, and pace for unskilled work, so long as it does not require
rapid machine pace or production type quotas; no limits on interacting
with others, is limited to routine, minor, and infrequent type of changes in
the workplace setting. * * * Would be best at a job that allows for a short
demonstration of the tasks that the individual would be expected to
perform.
(Tr. 832-833.) The VE stated such an individual could perform Plaintiff’s past work as a
kitchen helper and cleaner. (Tr. 833.)
19
The ALJ then asked a second hypothetical that was the same as the first, but
changed the exertional level from medium to light. (Tr. 833.) The VE testified such an
individual could perform Plaintiff’s past work as a cleaner and other representative jobs
such as cafeteria attendant (light, unskilled, SVP 2) and parking lot attendant (light,
unskilled, SVP 2). (Tr. 833-834.)
The ALJ then asked a third hypothetical that was the same as the first, but
changed the exertional level to light and limited standing and walking to four hours a
day. (Tr. 835.) The VE testified such an individual could not perform any of the
previously identified jobs, but could perform the job of cashier (light, unskilled, SVP 2.)
(Tr. 835-836.) When asked to identify other representative jobs that such a hypothetical
individual could perform, the VE stated that “what I’m left with is looking at sedentary
assembly jobs,” which she described as “more difficult to secure.” (Tr. 840.)
Plaintiff’s attorney asked the VE regarding her understanding of the restriction to
jobs that have a short demonstration of tasks. (Tr. 849.) The VE testified she
understood this to mean “if the person couldn’t understand it verbally, they could be
shown.” (Tr. 850.) Upon further questioning, the VE confirmed she did not interpret this
restriction as meaning no reading or writing. (Id.)
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when he
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when he cannot perform “substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
20
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).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that
he is not currently engaged in “substantial gainful activity” at the time he seeks disability
benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show
that he suffers from a “severe impairment” in order to warrant a finding of disability. 20
C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that “significantly
limits . . . physical or mental ability to do basic work activities.” Abbot, 905 F.2d at 923.
Third, if the claimant is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment meets
a listed impairment, the claimant is presumed to be disabled regardless of age,
education or work experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the
claimant’s impairment does not prevent him from doing his past relevant work, the
claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth
and final step, even if the claimant’s impairment does prevent him from doing his past
relevant work, if other work exists in the national economy that the claimant can
perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 404.1560(c), and
416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant has not engaged in substantial gainful activity since
21
February 9, 2007, the application date (20 CFR 416.971 et seq.).
2.
The claimant has the following severe impairments: degenerative disc
disease, borderline intellectual functioning, osteoarthritis, diabetes
mellitus, obesity, and depression (20 CFR 416.920(c)).
3.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 416.920(d) and 416.926.)
4.
After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to perform light work as defined
in 20 CFR 416.967(b) except:
•
•
•
•
•
•
•
He is limited to occasional climbing of ramps, stairs, ladders,
ropes, and scaffolds.
He can frequently stoop and occasionally kneel, crouch, and
crawl.
He can understand, remember, and carry out simple
instructions consistent with performing unskilled work.
He can maintain concentration, persistence, and pace for
unskilled work so long that it does not require rapid machine
pace or production type quotas.
He has no limits on interacting with others.
He is limited to routine, minor, and infrequent type of changes
in the work place setting.
Would be best at a job that allows for short demonstration of
the tasks that the individual would be expected to perform at
work.
5.
The claimant is unable to perform any past relevant work (20 CFR
416.965).
6.
The claimant was born on July **, 1965 and was 41 years old, which
is defined as a younger individual age 18 through 49, on the date the
application was filed (20 CFR 416.963).
7.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964.)
8.
Transferability of job skills is not an issue in this case because the
claimant’s past relevant work in unskilled (20 CFR 416.968.)
9.
Considering the claimant’s age, education, work experience, and
22
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 416.969 and 416.969(a)).
(Tr. 746-763.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
23
the opposite conclusion. Ealy, 594 F.3d at 512.
B.
Plaintiff’s Assignments of Error
1.
The ALJ violated this Court’s remand Order
Plaintiff argues remand is required because the ALJ violated this Court’s
November 2012 remand order in three respects. (Doc. No. 20.) First, Plaintiff asserts
the ALJ violated the remand order “by finding that a medical source must diagnose
‘mental retardation’ (now ‘intellectual disability’) to invoke Listing 12.05C.” (Id. at 15.)
Plaintiff claims the ALJ’s finding on this issue directly contradicts this Court’s previous
conclusion that “Listing 12.05C does not require a diagnosis of mental retardation.” See
Killings, Case No. 1:12CV479 (N.D. Ohio) (Doc. No. 20 at 21.)
Second, Plaintiff argues the ALJ violated the remand order “by finding that
claimant did not attend special education classes (which is a key indicator of adaptive
deficits before age 22).” (Id. at 16.) Plaintiff claims that, in its November 2012 Opinion
& Order, this Court made the factual determination that Plaintiff attended special
education classes throughout high school. Plaintiff asserts the ALJ was bound by this
factual determination on remand. He also maintains the ALJ overlooked a second set
of school records that contained the notation “special ed.” (Id.) He claims that because
the ALJ erred regarding special education, the decision makes a mistake of law and a
finding contrary to substantial evidence by determining that there is no evidence to
support an onset before age 22. (Id.)
Third, Plaintiff argues the ALJ violated the remand order because she “without
explanation failed to re-ask the hypothetical question about hazards.” (Id. at 17.) He
maintains (summarily) that “[t]he decision violates the Court’s order by finding no
24
limitations whatsoever on exposure to hazards.” (Id.)
The Commissioner argues the ALJ did not violate this Court’s remand order.
She maintains the ALJ satisfied the Court’s Order with respect to Listing 12.05C
because the ALJ did not question the validity of Plaintiff’s IQ scores, opting instead to
base her step three determination on the lack of evidence demonstrating adaptive
deficits prior to age 22. (Doc. No. 22 at 8-9.) With regard to the ALJ’s finding that
Plaintiff was not in special education classes, the Commissioner asserts the ALJ was
not bound by the prior ALJ’s factual determinations and was permitted to make new
factual findings and a decision based on her review of the complete record after
remand. (Id. at 14-15.) Finally, for similar reasons, the Commissioner argues the ALJ
was not bound by the prior ALJ’s determination that Plaintiff must avoid hazards. She
asserts that “on remand, the ALJ expressly found Plaintiff did not require a limitation
that he avoid hazards” and, therefore, “there was no reason for the ALJ to include
language regarding hazards in his RFC determination or in the hypothetical example to
the [VE].” (Id. at 15.)
The Sixth Circuit has held that, where a federal district court has reversed the
Commissioner's final decision and remanded the case for further proceedings, “it is the
duty of ... the agency from which appeal is taken ... to comply with the mandate of the
court and to obey the directions therein without variation and without departing from
such directions.” Mefford v. Gardner, 383 F.2d 748, 758 (6th Cir. 1967). As that Court
later explained:
In some Social Security cases, district courts will include detailed
instructions concerning the scope of the remand and the issues to be
addressed. In such cases, “[d]eviation from the court's remand order in
25
subsequent administrative proceedings is itself legal error, subject to
reversal on further judicial review.” Sullivan v. Hudson, 490 U.S. 877, 886,
109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). See also Mefford v. Gardner,
383 F.2d 748, 758 (6th Cir. 1967) . . . These cases stand for the
proposition that the administrative law judge may not do anything
expressly or impliedly in contradiction to the district court's remand order.
Hollins v. Massanari, 2002 WL 31398968 at * 2 (6th Cir. Oct. 17, 2002).
That being said, the Sixth Circuit noted in Hollins that “[t]hese cases do not
preclude the ALJ from acting in ways that go beyond, but are not inconsistent with, the
district court's opinion.” Id. Indeed, courts have found that “as long as an issue was not
finally decided in the District Courts, the ALJ can exceed the scope of a remand order
and reconsider any evidence deemed appropriate in reaching a decision regarding a
claim.” Beatty v. Comm’r of Soc. Sec., 2015 WL 5693663 at * 3 (E.D. Mich. Sept. 29,
2015). See also Drossman v. Comm’r of Soc. Sec., 2008 WL 1848202 at * 6 (N.D. Ohio
April 17, 2008) (Carr, J.) (finding that “Hollins explicitly allowed ALJs receiving a case on
remand to move beyond the issues examined in the district court opinion” and “ALJs
should not feel constrained to only consider the limited issues previously presented and
specifically remanded for further consideration.”)
With the above principles the mind, the Court now considers Plaintiff’s three
specific arguments.
a.
Listing 12.05C
Plaintiff first argues the ALJ violated this Court’s remand order by finding that
Listing 12.05C requires a diagnosis of mental retardation. Listing 12.05 sets forth the
requirements for finding disability resulting from “intellectual disability.” 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 12.05. In its first paragraph, Listing 12.05 provides the
26
diagnostic description of the impairment:
Intellectual disability refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports
onset of the impairment before age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
Id. In other words, in order to satisfy the requirements of the Listing, an individual must,
first, demonstrate the onset of the deficits described in the diagnostic description prior to
age 22, and, second, satisfy the requirements of any one of the four subsections. See
Hayes v. Comm'r of Soc. Sec., 357 Fed. Appx. 672, 676 (6th Cir. 2009) (noting that an
IQ below 70 was not sufficient on its own to satisfy Listing 12.05, as the claimant must
“still satisfy the three-prong definition of mental retardation” and one of the subsections).
As relevant to this case, an individual may satisfy the requirement of subsection
(C) by demonstrating a “valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant work-related
limitation of function.” Id. Subsection (C), therefore, sets forth two requirements: (1) an
IQ requirement; and (2) a significant limitation requirement. See Switzer v. Colvin, 2014
WL 2611945 at * 6 (N.D. Ohio June 11, 2014) (Vecchiarelli, M.J.).
The previous ALJ determined Plaintiff did not meet or equal Listing 12.05C
because “although the claimant was assigned IQ scores of 61 and 67, these were not
designated as valid scores.” (Tr. 17.) On appeal to this Court, the undersigned found as
follows:
Defendant’s brief responds to Killings’ arguments by asserting that Killings
could not have been found disabled under Listing 12.05(C) because he did
not exhibit the required deficits in adaptive functioning prior to age 22. As
27
the ALJ did not contest this point, the Commissioner’s argument is
irrelevant to whether the ALJ’s opinion is supported by substantial
evidence.
Defendant’s brief also asserts that Dr. Zeck diagnosed Killings as being in
the borderline range rather than retarded. This, too, is irrelevant. Listing
12.05(C) does not require a diagnosis of mental retardation.
The Commissioner, thus, responds to plaintiff’s arguments by asserting
arguments that the ALJ did not make and by supporting a position implied
by the ALJ that is incorrect. The Commissioner does not directly respond
to plaintiff’s position with respect to the uncertainty regarding Dr. Zeck’s
comment regarding the meaning of “minimal estimate” or regarding use of
the verbal comprehension score of 66 as the proper measure of whether
Killings meets the requirements of Listing 12.05(C).
At the very least, the ALJ should have inquired as to whether Dr. Zeck’s
comment that the full scale score was a “minimal estimate” meant that all
of Killings’ WAIS-IV scores were invalid. If Dr. Zeck said that, indeed, all
the scores were invalid, the ALJ should have had Killings re-tested, as
recommended by Brown. Given the ALJ’s failure to clarify this portion of
the record, his finding that Killings does not meet Listing 12.05(C) is not
supported by substantial evidence.
Killings, Case No. 1:12CV479 (N.D. Ohio Nov. 6, 2012) (Doc. No. 20 at 21.) Thus, this
Court ordered that, on remand, the ALJ must do the following: “The ALJ must clarify
whether Dr. Zeck’s comment that the full scale score was a ‘minimal estimate’ meant
that all of Killings’ WAIS-IV scores were invalid. If that is the case, the ALJ must obtain
a valid intelligence test score. If not, the ALJ must use the verbal comprehension
score of 66 in determining whether Killings meets the Listing at 12.05C. In either case,
the ALJ must reconsider whether Killings meets that Listing.” (Id. at 27.)
On remand, the Appeals Council noted Plaintiff had filed a subsequent claim for
benefits in March 2012, and ordered the new ALJ (ALJ Loucas) to “associate the claim
files and issue a new decision on the associated claims.” (Tr. 1043.) The Appeals
Council directed ALJ Loucas to offer Plaintiff “the opportunity for a new hearing, take
28
any further action needed to complete the administrative record, and issue a new
decision.” (Id.)
Plaintiff subsequently underwent a consultative psychological examination with
Dr. Evans, which included additional IQ testing. (Tr. 1272-1280.) Plaintiff achieved a
verbal comprehension score of 63, a perceptual reasoning score of 75, a working
memory score of 69, a processing speed score of 74, and a full scale score of 65. (Tr.
1278.) Dr. Evans concluded that “[a]t the 90% confidence level interval, his true full
scale IQ score is likely to fall between 62 and 69.” (Id.) Dr. Evans further stated that
“[b]ased upon [Plaintiff’s] diligence and persistence during testing this is believed to be
a valid and reliable estimate of his current level of functioning.” (Id.)
ALJ Loucas thereafter conducted a hearing and issued a decision, which
included consideration of medical evidence post-dating the previous ALJ’s decision. In
her decision, ALJ Loucas expressly considered whether Plaintiff met or equaled the
requirements of Listing 12.05C. (Tr. 749-752.) After a lengthy analysis, the ALJ
concluded Plaintiff did not meet this Listing because he failed to demonstrate deficits in
adaptive functioning before the age of 22. In particular, she found as follows:
Looking at the introductory paragraph for Listing 12.05C, it states:
“intellectual disability refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports
onset of the impairment before age 22.” There is no evidence to
support or demonstrate such an onset, and absent the required
diagnostic criteria, there is no need to evaluation [sic] any of the
later criteria. Since there is no objective, diagnostic or laboratory
evidence in the record that addresses the claimant’s adaptive functioning
during the period of time prior to the claimant’s ge of 22, the claimant’s
testimony is the only evidence that was proffered to prove the allegation
that the claimant had deficiencies in adaptive functioning before the age of
29
22.
(Tr. 751) (emphasis added). ALJ Loucas then addressed the record evidence
regarding Plaintiff’s educational history and activities of daily living prior to age 22. The
ALJ noted “the claimant’s high school record contains no evidence or indication of
special education, an individual education plan, or any IQ testing or psychological
diagnosis.” (Id.) She observed Plaintiff attended three years of English, two of math,
and four years of “something called occupational orientation,” with grades “rang[ing]
from As to Fs, with most grades Cs or Ds.” (Id.) The ALJ also noted, however, that
Plaintiff “was frequently absent, peaking at 48 absences in his sophomore year, the
only year he failed courses.” (Id.) The ALJ found that “[p]assing grades in
mainstream, if vocationally oriented, course work shows that he did not have adaptive
deficits.” (Id.)
The ALJ also emphasized that, while in counseling at the Nord Center, Plaintiff
denied special education classes or any other barriers to learning. (Tr. 752.) She cited
evidence indicating Plaintiff’s claims of illiteracy were not credible, including that he (1)
indicated on a prison form that he was able to read and write; (2) had a driver’s license,
“which is evidence of an ability to read, write and comprehend sufficiently to answer
correctly the questions needed to obtain a drier’s license;” and (3) reported to Dr.
Evans that on a typical day he reads the Bible, watches TV, and does household
chores.” (Id.) The ALJ also noted that Plaintiff testified he dressed and bathed himself,
walked to school, and was able to avoid danger. (Tr. 751.)
The ALJ concluded “the claimant is not fully credible and while it is possible that
he had a lower intellectual ability prior to the age of 22, there is no compelling evidence
30
in support, and strong evidence to suggest that the claimant was not lacking in
adaptive functioning before the age of 22.” (Tr. 752.) She further stated that:
Perhaps most persuasive regarding the claimant’s intelligence is the fact
that despite having access to the IQ scores and education records, no
medical source has diagnosed the claimant with intellectual disability or
mental retardation. Multiple State agency psychologists, two examining
psychologists, and a testifying medical expert physician all gave borderline
intellectual functioning or a cognitive disorder as a diagnosis. (Exh. 9A
p10, 11A p10). As discussed below, this lack of a formal diagnosis is not
merely a legal formality, rather it shows that based on the medical
evidence before them, no acceptable medical source found the claimant to
have adaptive deficits consistent with intellectual disability. Rather, he has
a low IQ but high adaptive functioning.
(Id.) Finally, the ALJ noted that “[i]n this case, I am not questioning the validity of
current IQ, but rather the existence of adaptive deficits prior to the age of 22.”
(Id.)(emphasis added).
The ALJ did not violate this Court’s remand order. As required by that order,
ALJ Loucas obtained a valid intelligence test score on remand and reconsidered
whether Plaintiff met or equaled the requirements of Listing 12.05C. This Court’s
remand order did not require ALJ Loucas to limit her step three analysis solely to the
issue of whether Plaintiff had demonstrated a “valid verbal, performance, or full scale
IQ of 60 through 70.” Rather, the Court determined only that the previous ALJ’s step
three finding (i.e., that Plaintiff had failed to produce evidence of a valid IQ score in this
range) was not supported by substantial evidence. On remand, ALJ Loucas
acknowledged the validity of Plaintiff’s February 2013 Full Scale IQ score of 65, and
properly went on to consider whether he met the adaptive deficits criteria of Listing
12.05C. See Hollins, 49 Fed. Appx. at 536 (on remand, an ALJ is not precluded from
31
“acting in ways that go beyond, but are not inconsistent with, the district court’s
opinion). See also 20 C.F.R. § 404.983 (upon remand by a federal court, “[a]ny issues
relating to your claim may be considered by the [ALJ] whether or not they were raised
in the administrative proceedings leading to the final decision in your case.”)
Plaintiff nonetheless maintains remand is required because the ALJ “violated”
the Court’s Order by allegedly requiring a diagnosis of mental retardation to invoke
Listing 12.05C. Although the Court agrees that a formal diagnosis of mental
retardation is not required to establish that a claimant meets or equals Listing 12.05C,12
the ALJ did not base her step three finding solely on the lack of such a diagnosis.
Rather, the ALJ fully considered Listing 12.05C and thoroughly discussed a range of
evidence to find that Plaintiff had failed to demonstrate deficits in adaptive functioning
before age 22.
Accordingly, Plaintiff’s assignment of error is without merit.
b.
Special Education
Plaintiff next argues remand is required because “[t]his Court found that Killings
attended special education, yet the ALJ’s new decision denied that fact.” (Doc. No. 20
at 16.) Plaintiff bases his argument on the following sentence in this Court’s November
2012 Memorandum Opinion & Order: “The ALJ noted that Killings attended special
education classes in school and that his grades consisted of mostly Cs, Ds, and Fs.”
Killings, Case No. 1:12CV479 (N.D. Ohio Nov. 6, 2012) (Doc. No. 20 at 18.)
12
The Sixth Circuit recently noted that, “although a diagnosis of [mild mental
retardation] is not a necessary prerequisite to satisfy Listing 12.05, its absence is
probative for a 12.05C determination.” Peterson v. Comm’r of Soc. Sec., 552
Fed. Appx. 533, 539 (6th Cir. Jan. 21, 2014).
32
The Court rejects this argument. Clearly, this Court did not make a factual
determination that Plaintiff attended special education classes. Rather, the Court
simply stated that the previous ALJ had noted that Plaintiff attended special education
classes. See Tr. 15, 17, 19. Plaintiff cites no legal authority to support the position that
ALJ Loucas was not permitted to make a different factual finding from the previous ALJ
on this particular issue.13 Moreover, there is absolutely nothing in this Court’s previous
Opinion that required ALJ Loucas to find that Plaintiff attended special education
classes. On remand, ALJ Loucas conducted a new hearing, accepted new evidence
into the record, and issued a new decision based on the entirety of the record before
her. It was not inconsistent with this Court’s remand order for ALJ Loucas to reach a
different factual determination regarding whether Plaintiff attended special education
classes.
To the extent Plaintiff argues ALJ Loucas’ finding regarding special education is
not supported by substantial evidence, the Court rejects this argument. The ALJ
thoroughly considered the evidence regarding this issue as follows:
Mr. Roose argues that the claimant has a history of special education.
(Exh. 23E p1). The claimant’s high school record contains no evidence or
indication of special education, an individual education plan, or any IQ
testing or psychological diagnosis. His schedule shows three years of
English, two of math, and four years of something called occupational
orientation. His grades ranged from As to Fs, with most grades Cs or Ds.
However, he was frequently absent, peaking at 48 absences in his
sophomore year, the only year he failed courses. (Exh. 20E p1). Passing
grades in mainstream, if vocationally oriented, course work shows that he
did not have adaptive deficits. His high rate of absenteeism explains his
13
Indeed, Plaintiff’s counsel specifically acknowledged during the June 2013
hearing that ALJ Loucas was not bound to the previous ALJ’s decision. (Tr.
781.)
33
poor grades, as he missed nearly 1/3 of classes in his sophomore year.
Mr. Roose noted that he attempted to secure additional educational
records, but the claimant’s school district had no special education records
from before 1975, and only limited records after. (Exh. 24E p3). The
claimant was in high school in the early 1980s, and there is no indication
from his record that he was in special education classes, aside from the
letters EMR on his transcript, which possibly could stand for Educable
Mental Retardation. At the hearing, the claimant testified that he was in
“ODR class,” where they assisted the students in finding jobs. He testified
that he was in a 26 person class, and sold candy to other students to raise
money, although he said that the other students picked on him and the
other students in the special education program.
***
I note the counter evidence that he was in special education, namely that
he denied it, and any barrier to learning at the Nord Center, discussed
below. I note that two different practitioners, one in an ER setting and
another at Nord, estimated that his intelligence was in the average range.
I note that he only reported a history of special education, or complained
of any difficulty with concentration, when applying for benefits. No
treatment note contains any cognitive complaints of any kind.
(Tr. 751-752.)
Thus, the ALJ articulated a number of reasons to support her finding that
Plaintiff did not attend special education classes. Plaintiff complains these reasons are
not supported by substantial evidence because the ALJ “overlooked a second set of
school records that were marked with ‘special ed.’” (Doc. No. 20 at 16.) This
argument is rejected. The fact that the ALJ did not specifically reference these records
in the decision does not necessarily mean that she failed to consider them. Moreover,
the “spec. ed.” notation that Plaintiff refers to is crossed out with an X, rendering it
unclear whether this document indicates Plaintiff actually attended special education
classes or not. (Tr. 1117.) This is simply insufficient to establish that the ALJ’s factual
finding on this issue is not supported by substantial evidence.
34
Accordingly, the ALJ did not violate the Court’s remand order by finding Plaintiff
did not attend special education classes. Moreover, this factual determination is
supported by substantial evidence in the record. Plaintiff’s arguments to the contrary
are without merit.
c.
Hazards
Lastly, Plaintiff argues the ALJ violated the remand order because she “without
explanation failed to re-ask the hypothetical question about hazards.” (Doc. No. 20 at
17.) He maintains the decision “violates the Court’s order by finding no limitations
whatsoever on exposure to hazards.” (Id.)
In his RFC determination, the first ALJ (ALJ LeBlanc) concluded Plaintiff “would
need to avoid hazards such as dangerous machinery or unprotected heights.” (Tr. 18.)
On appeal, Plaintiff argued that, although the ALJ found Plaintiff would need to avoid
hazards when working, the ALJ’s hypothetical question to the VE supposed an
individual who had to avoid concentrated hazards. Plaintiff argued ALJ LeBlanc’s
hypothetical did not properly include all of Plaintiff’s limitations.
In the November 2012 Memorandum Opinion & Order, the undersigned
addressed this issue as follows:
The court cannot determine whether the use of ‘avoid concentrated
hazards’ rather than ‘avoid hazards’ in the hypothetical question made any
significant difference in the VE’s estimate of the number of jobs in the
national economy that Killings could perform. As this case must be
returned to the ALJ, the ALJ must re-ask the hypothetical question to the
VE, rephrasing the question to eliminate the restriction to an individual
who must avoid only ‘concentrated’ hazards.
Killings, Case No. 1:12CV479 (N.D. Ohio Nov. 6, 2012) (Doc. No. 20 at 26.) The
undersigned ordered that, on remand, “[t]he ALJ must rephrase the hypothetical
35
question to the VE to eliminate the restriction to a supposed individual who must avoid
only ‘concentrated’ hazards.” (Id. at 27.)
As noted above, after remand, the Appeals Council ordered ALJ Loucas to
consolidate the instant application with a subsequent application filed by Plaintiff;
conduct a new hearing; and issue a new decision based on the entirety of the record
before her. (Tr. 1043.) ALJ Loucas conducted a hearing in June 2013 during which
she asked the VE several hypotheticals, none of which included any restrictions
regarding hazards. (Tr. 832-840.) In her decision, ALJ Loucas found that “[a] review of
the full evidence shows that the claimant need not avoid hazards. . . The claimant
improved, with little musculoskeletal pain or treatment in the record after 2011.” (Tr.
758.)
The ALJ did not violate this Court’s remand order by failing to include restrictions
regarding hazards in the hypothetical question to the VE. ALJ Loucas expressly
determined the evidence did not support a limitation to avoid hazards. She properly
based her decision on the entirety of the record before her, which included hearing
testimony and medical evidence that ALJ LeBlanc did not have before him. Under
these circumstances, it was not a violation of this Court’s remand order for ALJ Loucas
to reach a different conclusion regarding whether to include a limitation to avoid
hazards in the hypothetical question and RFC.14 Accordingly, this assignment of error
14
It is well established that, in fashioning a hypothetical question to be posed to
a VE, an ALJ is required to incorporate only those limitations that she accepts as
credible. See Griffeth v. Comm’r of Soc. Sec., 217 Fed. Appx. 425, 429 (6th Cir.
2007) (citing Casey v. Sec’y of HHS, 987 F.2d 1230, 1235 (6th Cir. 1993)). Here,
Plaintiff does not challenge the ALJ’s finding that the evidence does not support
a limitation against exposure to hazards.
36
is without merit.
2.
Literacy
In his second assignment of error, Plaintiff argues the ALJ’s literacy finding is
not supported by substantial evidence. Noting the previous ALJ found him illiterate,
Plaintiff argues ALJ Loucas “gave no clear reason to change the finding to literate.”
(Doc. No. 20 at 18.) He further claims “the hypothetical’s statement that Killings would
be ‘best at a job that allows for short demonstration of the tasks,’ is vague and does not
sufficiently account for Killings’ illiteracy,” particularly where the VE did not interpret this
restriction as meaning no reading or writing. (Id. at 18-19.)
The Commissioner argues “the ALJ did not have to explain how her reasoning
differed from that of the prior ALJ” and, instead, “simply needed to support her findings
and decision with substantial evidence.” (Doc. No. 22 at 16.) She further asserts “the
evidence discussed by the ALJ was more than enough to substantially support the
determination that Plaintiff was sufficiently literate to complete work at the level
assigned in her RFC determination.” (Id. at 16-17.)
The Court agrees with the Commissioner. For the reasons discussed previously
in this decision, ALJ Loucas was not bound by the prior ALJ’s literacy determination.
Nor is there anything in this Court’s November 12, 2012 Memorandum Opinion & Order
that required ALJ Loucas to adopt the previous ALJ’s factual finding on this issue.
Moreover, the Court finds ALJ Loucas’ literacy finding is supported by
substantial evidence. The regulations define illiteracy as the “inability to read or write.”
20 C.F.R. 404.1564(b)(1). The regulations further provide that “[w]e consider someone
illiterate if the person cannot read or write a simple message such as instructions or
37
inventory lists even though the person can sign his or her name. Generally, an illiterate
person has had little or no formal schooling.” Id. “A numerical grade level is properly
used to determine a claimant’s educational abilities only if contradictory evidence does
not exist.” Skinner v. Sec’y of HHS, 902 F.2d 447, 450 (6th Cir.1990).
In addition to the reasons discussed in connection with her determination
regarding special education, ALJ Loucas articulated numerous reasons supporting her
literacy finding as follows:
At Exhibit 15F, in the record of Ohio Dept. of Rehabilitation and
Corrections, there is a document entitled: “Inmate Testing Information
Sheet L.O.R.C.I. Mental Health and Education Department.” The
claimant signed his name to the document and answered “Yes,” to the
question: “I have the ability to read and write English.” This is in direct
contradiction to his assertion at the hearing that he could not read or write
in English. Other evidence further contradicts his assertion of illiteracy.
He had a driver’s license which is evidence of an ability to read, write and
comprehend sufficiently to answer correctly the questions needed to
obtain a driver’s license. He told Dr. Zeck that he lost his license after an
accident in 1983, and he has not been driving since. Ex. 16F. Instead, he
rode his bicycle frequently. This is relevant evidence that he did not have
deficiencies in adaptive functioning because he was physically and
mentally capable of driving, and he could read and follow directional
signage and street names as a means of going from one place to another.
Another significant inconsistency in the record which detracts from the
claimant’s credibility is his own statement that he made to Dr. Evans at a
consultative examination in February of 2013, where he stated that on a
typical day: “I read the Bible, watch TV, and do household chores.” Ex.
27F, pg. 7.
(Tr. 752.) Later in the decision, the ALJ also noted that, in December 2008, a
physician “told claimant to look up nutrition information at the library, and the claimant
did not report difficulties with reading.” (Tr. 754.)
The ALJ acknowledges the results of a Beta-II test conducted in 1998 while
38
Plaintiff was in prison that showed a second grade reading level.15 (Tr. 755.) The ALJ
gave less weight to this result, however, because it was not signed by an acceptable
medical source and “it is not routinely used in the psychological community.” (Id.) The
ALJ also discounted this assessment on credibility grounds, noting Plaintiff “reported to
a therapist at the Nord Center that he manipulated mental health services while in
prison to gain a personal benefit” (i.e., he falsely reported he was diagnosed with
schizophrenia in order to avoid placement with the general population.) (Id.) The ALJ
found “the fact that the claimant was able to act in a convincing manner so that the
prison mental health providers believed he was schizophrenic is compelling evidence
that the claimant can be successful in misleading individuals and professionals as to
the true nature of his abilities and character.”16 (Tr. 757.)
Finally, the ALJ acknowledged Plaintiff’s hearing testimony that he cannot read
simple English and is unable to prepare a grocery list or make change. (Tr. 759.)
However, she discounted this testimony as follows:
[I]nformation from other records is contradictory to the claimant’s
testimony and allegations. For example, in the Function Report prepared
by the claimant’s wife Garnetta Killings, she indicated that the claimant
could count change. (Ex. 30E pg. 4). The only reason that was identified
as a problem with his ability to handle money was simply his lack of having
an income and therefore, not having access to money to manage. Ex.
30E, pgs. 4-5. * * * He could pay attention “All day” and could follow
written instructions if provided in a “step by step” fashion. Ex. 30E, pg. 6.
15
Cases have found that a person who reads below a third grade reading level
may be deemed “functionally illiterate.” See e.g., Dantzer v. Comm’r of Soc.
Sec., 2011 WL 1113446 at * 5 (N.D. Ohio March 24, 2011) (Zouhary, J.) (citing
Skinner, 902 F.2d at 450.)
16
Notably, Plaintiff does not challenge the ALJ’s credibility finding in this case.
39
(Id.)
The Court finds the ALJ thoroughly considered the evidence regarding Plaintiff’s
reading and writing abilities and articulated numerous reasons for finding him to be
literate. In reaching this conclusion, the ALJ properly relied on Plaintiff’s inconsistent
statements regarding his ability to read and write, as well as evidence that he was able
to graduate from high school and pass his driver’s license test. She addressed
evidence suggesting Plaintiff had achieved only a second grade reading level and
provided several reasons for rejecting it. Plaintiff does not expressly argue, and cites
no authority for the position, that the ALJ’s rejection of that evidence was
unreasonable.
Accordingly, the Court finds the ALJ’s literacy determination is supported by
substantial evidence in the record. Plaintiff’s argument to the contrary is without merit.
3.
Consultative Examiner Evans
Plaintiff next argues remand is required because the ALJ failed to address the
opinion of consultative examiner Dr. Evans that Plaintiff “would have significant
difficulties performing multi-step tasks in a workplace setting.” (Doc. No. 20 at 19.)
The Commissioner argues Dr. Evans’ report clearly indicates Plaintiff is capable of
performing simple work and, therefore, is consistent with the RFC. (Doc. No. 22 at 1718.)
In formulating the RFC, ALJs “are not bound by any findings made by State
agency medical or psychological consultants, or other program physicians or
psychologists.” 20 C.F.R. § 404.1527(e)(2)(i). Nonetheless, because “State agency
medical and psychological consultants and other program physicians, psychologists,
40
and other medical specialists are highly qualified physicians, psychologists,” ALJs must
consider their findings and opinions. (Id.) When doing so, an ALJ “will evaluate the
findings using the relevant factors in paragraphs (a) through (d) of this section, such as
the consultant's medical specialty and expertise in our rules, the supporting evidence in
the case record, supporting explanations the medical or psychological consultant
provides, and any other factors relevant to the weighing of the opinions.” 20 C.F.R. §
404.1527(e)(2)(ii). Finally, an ALJ “must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant or other program
physician, psychologist, or other medical specialist” unless a treating physician's
opinion has been accorded controlling weight. (Id.)
As noted above, Dr. Evans determined Plaintiff would have “significant
difficulties remembering and carrying out complex instructions in workplace setting,”
but “does appear to be capable of completing simple instructions.” (Tr. 1279.) He
found Plaintiff displayed good attention, concentration, and focus during the evaluation;
however, “his score on the working memory index suggests that he would have
significant difficulties performing multi-step tasks in a workplace setting.” (Id.)
In a check-box form accompanying his written report, Dr. Evans opined that Plaintiff
was markedly limited in his abilities to (1) understand, remember, and carry out
complex instructions; and (2) make judgments on complex work-related decisions. (Tr.
1272.) He found Plaintiff was only mildly limited, however, in his abilities to
understand, remember, and carry out simple instructions and make judgments on
simple work-related decisions. (Id.)
The ALJ addressed Dr. Evans’ report as follows:
41
On February 28, 2013, the claimant saw Thomas Evans, Ph.D., who also
reviewed the Nord diagnostic assessment. (Exh. 27F p5). The claimant
reported that he was in special education since the second grade. He
also said he last worked in 2003, but then said that he began having
problems concentrating at work in 2005. When asked about depression,
he reported consistent depression several days a week since 2001. (Exh.
27F p6). On a typical day, he reported that he reads the Bible, watches
TV, and does chores. His speech was normal, and he maintained good
eye contact, with euthymic mood and affect. He could spell the word
“world” forward and backward, knew the current prior president, and could
recall three out of three words after a five minute delay. When tested for
digit span, he could recall five digits forward and four back. (Exh. 27F p7).
On the WAIS-IV, the claimant scored a 65 Full Scale IQ with a 63 Verbal
Comprehension IQ, which Dr. Evans felt was valid. He diagnosed the
claimant with depressive disorder, not otherwise specified, and a cognitive
disorder. Again, he did not diagnose an intellectual disability. Dr. Evans
assigned a GAF score of 55, indicating moderate symptoms and his
cognitive deficits. (Exh. 27F p8). Dr. Evans opined that the claimant had
mild restrictions to simple work, but marked limitations to complex work
and no social limitations. (Exh. 27F, pp2-3). I give this opinion great
weight, and I limit the claimant to simple tasks. The opinion is consistent
with the findings from this exam and all other sources.
(Tr. 757.)
Plaintiff argues that, although the ALJ purported to give Dr. Evans’ opinion great
weight, she failed to address his specific opinion that Plaintiff would have “significant
difficulties performing multistep tasks.” (Doc. No. 20 at 19-20.) He argues the ALJ
erred in failing to impose a restriction against multistep tasks in the RFC finding or the
hypothetical question. (Doc. No. 20 at 19-20.)
The Court rejects this argument. The RFC contains multiple limitations
restricting Plaintiff to simple, routine work, including that Plaintiff (1) can understand,
remember, and carry out simple instructions consistent with performing unskilled work;
(2) can maintain concentration, persistence, and pace for unskilled work so long that it
does not require rapid machine pace or production type quotas; (3) is limited to routine,
42
minor, and infrequent type of changes in the work place setting; and (4) would be best
at a job that allows for a short demonstration of the tasks that the individual would be
expected to perform at work. (Tr. 753.) Plaintiff fails to explain how these limitations
are inconsistent with Dr. Evans’ opinion regarding multi-step tasks, or otherwise fail to
accommodate his mental impairments. This assignment of error is without merit.
4.
Treating Physician Timothy Plank, D.O.
Plaintiff next argues the ALJ failed to address, in any fashion, several of the
opinions offered by treating physician Dr. Plank. He further maintains that, “even as to
the opinions of Dr. Plank that were discussed by the ALJ, the decision does not give
good reasons for discrediting those opinions.” (Doc. No. 20 at 22.) The Commissioner
asserts the ALJ fully addressed Dr. Plank’s opinions and articulated good reasons for
discounting them.
“An ALJ must give the opinion of a treating source controlling weight if he finds
the opinion ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques’ and ‘not inconsistent with the other substantial evidence in the case
record.’ ” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20
C.F.R. § 404.1527(d)(2)) (internal quotes omitted). If an ALJ decides to give a treating
source’s opinion less than controlling weight, he 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. See Wilson,
378 F.3d at 544 (quoting S.S.R. 96-2p, 1996 WL 374188, at *5 (S.S.A.)). This “clear
elaboration requirement” is “imposed explicitly by the regulations,” Bowie v. Comm’r of
Soc. Sec., 539 F.3d 395, 400 (6th Cir. 2008), and its purpose is to “let claimants
43
understand the disposition of their cases” and to allow for “meaningful review” of the
ALJ’s decision, Wilson, 378 F.3d at 544 (internal quotation marks omitted). Where an
ALJ fails to explain his reasons for assigning a treating physician’s opinion less than
controlling weight, the error is not harmless and the appropriate remedy is remand. Id.
“The medical opinions and diagnoses of treating physicians are generally
accorded substantial deference, and if the opinions are uncontradicted, complete
deference.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002), citing
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). Furthermore, it is well-established
that administrative law judges may not make medical judgments. See Meece v.
Barnhart, 192 Fed. App’x 456, 465 (6th Cir. 2006) (“But judges, including administrative
law judges of the Social Security Administration, must be careful not to succumb to the
temptation to play doctor.”) (quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.
1990)). Although an ALJ may not substitute his or her opinions for that of a physician,
“an ALJ does not improperly assume the role of a medical expert by assessing the
medical and non-medical evidence before rendering a residual functional capacity
finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009); see also
Winning v. Comm'r of Soc. Sec., 661 F. Supp.2d 807, 823-24 (N.D. Ohio 2009)
(O’Malley, J.) (“Although the ALJ is charged with making credibility determinations, an
ALJ ‘does not have the expertise to make medical judgments.’”)
Here, Dr. Plank completed a “Medical Source Statement: Physical Abilities and
Limitations” form assessing Plaintiff’s condition on August 12, 2010. (Tr. 581–82.) Dr.
Plank opined Plaintiff could (1) stand for 15 minutes at a time and for a total of one
hour in an eight-hour day; (2) sit for 30 minutes at a time and for a total of four hours in
44
an eight-hour day; (3) lift and carry up to five pounds occasionally and up to five
pounds frequently; (4) never stoop, balance, work around dangerous equipment,
operate a motor vehicle, or tolerate cold; and (5) only occasionally tolerate heat and
tolerate dust, smoke, or fumes exposure. (Id.) He also opined Plaintiff suffered from
extreme pain and his pain and limitations were the result of degenerative disc disease.
(Id.) Dr. Plank stated Plaintiff was taking medications that would adversely affect work
performance and would be absent from work for four or more days per month due to
exacerbations of pain and the need to take pain medications. (Id.)
In addition, according to Dr. Plank, Plaintiff would, during a typical workday,
constantly experience symptoms severe enough to interfere with attention and
concentration needed to perform even simple work tasks; needed a job that permits
shifting at will from sitting, standing, or walking; would have to take hourly unscheduled
breaks from working in an eight-hour day; and was incapable of performing even
low-stress jobs. (Id.) Dr. Plank concluded by opining Plaintiff was unemployable due
to severe, chronic lower back pain and neuropathy, illiteracy, poorly controlled
diabetes, obesity, and osteoarthritis. (Id.)
In the decision, the ALJ recounted the medical evidence, including the record
evidence regarding Plaintiff’s treatment history with Dr. Plank. (Tr. 754-758.) She
assessed Dr. Plank’s opinion as follows:
I give little weight to the opinion of Dr. Plank, given on August 2010. He
opined that the claimant was limited to less than sedentary work, could
never work around hazards or cold, and would be absent four days a
month from work due to exacerbations of pain. (Exh. 12F). Dr. Plank is a
treating source, but this opinion is not due controlling weight because it is
not consistent with substantial evidence, including claimant’s frequent
reports of being able to walk, and his testimony in September 2010 that he
45
shoveled snow and mowed the lawn. Further, this opinion is not
supported by any clinical findings or lab results. Dr. Plank’s records show
only tenderness, with no radiculopathy. Even the subjective complaints
Dr. Plank recorded show only intermittent pain complaints. As for his
opinion that the claimant would be frequently absent, the claimant does
not consistently request or take narcotic pain medications at the level Dr.
Plank suggests. Finally, Dr. Plank opined that the claimant could not even
perform low stress jobs, yet he never recorded any mental status findings
in any of his treatment notes, and there are no clinical signs that could
supports such an opinion. I cannot give this opinion controlling weight due
to all of these inconsistencies and lack of support. In September 2008, Dr.
Plank filled out Medicaid forms, which he noted that the claimant “needed
desperately.” (Exh. 8F p20). This shows that Dr. Plank has a sympathetic
interest in the claimant, which colors his functional opinion.
(Tr. 758.)
Reading the decision as a whole, the Court finds the ALJ articulated good
reasons for according little weight to Dr. Plank’s opinion. The ALJ discounts Dr.
Plank’s opinion as inconsistent with Plaintiff’s reports of being able to walk, shovel
snow and mow the lawn. The Court finds this reason to be supported by substantial
evidence in the record. Dr. Plank’s August 2010 opinion describes severe physical
functional limitations, including highly restrictive limitations on Plaintiff’s abilities to
stand, sit, lift/carry, stoop, and balance. During his hearing before the ALJ the very
next month, however, Plaintiff testified he was able to walk five or six miles to the store
with a 15 to 20 minute break, ride his bike, do push-ups and sit-ups, mow the lawn, and
shovel snow. (Tr. 114-115, 120-122.) It was not unreasonable for the ALJ to find this
testimony wholly inconsistent with Dr. Plank’s opinions.
The ALJ also found Dr. Plank’s opinions were not supported by clinical findings
and lab results. Earlier in the decision, the ALJ discussed Dr. Plank’s treatment notes,
which showed the following. (Tr. 525-541, 645-684.) Plaintiff complained of back pain
46
to Dr. Plank in January 2009, but denied radiation, numbness, weakness or tingling.
(Tr. 530-531.) In May 2009, Dr. Plank noted a benign physical examination. (Tr. 525.)
The following month, Plaintiff complained of left side pain in his back and leg, and Dr.
Plank detected mild paralumbar spasms. (Tr. 680-682.) While Plaintiff presented to
Dr. Plank on several occasions between July 2009 and May 2010, Dr. Plank’s
treatment notes do not include any complaints of back or knee pain during this time
period, although Plaintiff did complain of difficulty walking due to his obesity in
November 2009. (Tr. 655-679.)
On August 12, 2010, however, Plaintiff complained of “chronic low back pain”
and stated he was “considering Social Security Disability due primarily to his back
pain.” (Tr. 652.) Dr. Plank noted severely limited motion of the lumbosacral spine,
diffuse tenderness, and no focal bony pain. (Id.) That same day, Dr. Plank authored
his opinion that Plaintiff suffered severe functional limitations, noting he was
“unemployable” due to “severe chronic low back pain,” illiteracy, diabetes, obesity and
osteoarthritis. (Tr. 581-582.)
These treatment notes, which are cited by the ALJ, provide further support for
the ALJ’s decision to accord “little weight” to Dr. Plank’s August 2010 opinion. As the
ALJ correctly notes, Dr. Plank’s notes indicate only occasional lumbar tenderness,
which is inconsistent with his assessment of severe standing, sitting, postural and lifting
restrictions. Additionally, despite the fact Plaintiff presented to Dr. Plank frequently
between October 2008 and August 2010, there are long periods during this time frame
where Dr. Plank’s treatment notes do not indicate any pain complaints, which is also
inconsistent with Dr. Plank’s assessment of disabling pain. Moreover, while Dr. Plank
47
concluded Plaintiff’s symptoms were severe enough to constantly interfere with
attention and concentration and he could not perform low stress jobs, there are no
indications of concentration deficits, difficulty focusing, or other mental status findings
in Dr. Plank’s treatment notes that are consistent with this extreme opinion. Thus, the
Court finds the ALJ’s conclusion regarding the supportability of Dr. Plank’s opinions is
supported by substantial evidence in the record.
Plaintiff nonetheless asserts remand is necessary because “the decision did not
even mention Dr. Plank’s opinions about never stoop, never balance, only occasionally
tolerate heat, symptoms would interfere with concentration, persistence, or pace 67%
to 100% of the workday, need to shift positions at will.” (Doc. No. 20 at 22.) The Court
rejects this argument. With regard to each of these limitations, Dr. Plank’s opinion was
based on his conclusion that Plaintiff suffered severe pain due to his lumbar
degenerative disc disease. (Tr. 581.) Although the ALJ did not expressly discuss the
particular limitations identified by Plaintiff above, she articulated “good reasons” for
discounting Dr. Plank’s assessment of the impact of Plaintiff’s pain on his functional
capabilities. Read in this light, the Court finds the ALJ adequately addressed all of Dr.
Plank’s opinions and articulated good reasons for discounting them.
This assignment of error is without merit.
5.
Opinion Evidence regarding Plaintiff’s ability to stand/walk
Finally, Plaintiff argues that none of the physician opinions in this case found
Plaintiff could stand and/or walk for more than 4 hours during an eight hour workday.
He complains the ALJ nonetheless “rejected the opinions of all those doctors and the
prior ALJ about Killings’ ability to stand and walk, instead finding that Killings could
48
stand and walk 6 hours per day.” (Doc. No. 20 at 25.) He summarily concludes that
“the reasons for disagreeing with Dr. Teague were cursory” and “[s]imilarly with Dr.
Brahms the ME, Dr. Villanueva of the State agency was apparently not even
mentioned.”17 (Id.)
The Commissioner argues the ALJ properly addressed each physician opinion
and explained that “because of improvements in Plaintiff’s condition, reflected in his
minimal reports of musculoskeletal pain or treatment after 2011, it is reasonable that
Plaintiff is able to stand/walk for about six hours.” (Doc. No. 22 at 23.)
Here, the ALJ’s RFC concluded Plaintiff could perform “light work” as defined in
20 CFR 416.967(b), with additional postural and mental restrictions. (Tr. 753.) The
regulations provide that: “Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” 20 C.F.R. § 416.967(b). “Since frequent lifting or
carrying requires being on ones feet up to two-thirds of a workday, the full range of
light work requires standing or walking, off and on, for a total of approximately 6
hours of an 8–hour workday. Sitting may occur intermittently during the remaining
time.” SSR 83–10, 1983 SSR LEXIS 30 (emphasis added).
The ALJ assessed the opinions of state agency physician Dr. Teague and ME
17
Plaintiff’s entire argument in support of this assignment of error is cursory at
best, consisting of only two paragraphs. It contains no discussion of the medical
record and does not cite a single statute, regulation, case citation, or other legal
authority.
49
Dr. Brahms, as follows:
I give considerable weight to the October 2, 2012 opinion of Dimitri
Teague, MD, the State agency reviewing physician. He gave that opinion
during a subsequent application, but Dr. Teague adopted the residual
functional capacity from the June 2011 decision by ALJ LeBlanc. (Exh.
11A p 8). Notably, he opined that the claimant could only stand or walk for
four hours a day. I cannot adopt that finding, as that decision was
vacated. However, I agree that the claimant is limited to light work with
some limitations to posturals. A review of the full evidence shows that the
claimant need not avoid hazards, and can stand/walk for four hours a day.
The claimant, improved, with little musculoskeletal pain or treatment in the
record after 2011.
In May 2011, at a prior hearing, Malcolm Brahms, MD, testified as a
medical expert. He opined that the claimant could perform light work, and
did not meet or medically equal a Listing. I give this great weight, and
while there is new evidence in the record, none of it contradicts his
opinion. For the reasons given above, I reject his opinion that the claimant
can only stand/walk for four hours a day. The claimant improved, with
little musculoskeletal pain or treatment in the record after 2011.
(Tr. 758.) As discussed above, the ALJ explicitly rejected Dr. Plank’s opinion that
Plaintiff could stand for 15 minutes at a time and no more than a total of 1 hour. (Id.)
The Court finds the ALJ properly considered the opinion evidence regarding
Plaintiff’s capacity to stand/walk during an eight hour workday. The ALJ acknowledged
the opinions of Drs. Plank, Brahms, and Teague regarding this issue and articulated
sufficient reasons for discounting them. As discussed supra, the ALJ provided several
“good reasons” for discounting Dr. Plank’s opinion that Plaintiff could stand for no more
than one hour during an 8 hour workday, each of which was supported by substantial
evidence in the record. The ALJ also sufficiently articulated her basis for rejecting the
opinions of Drs. Brahms and Teague that Plaintiff could stand for no more than 4
50
hours.18 Specifically, the ALJ noted Plaintiff had improved, “with little muscoloskeletal
pain or treatment in the record after 2011.” (Tr. 758.) Plaintiff does not argue this is an
insufficient basis for rejecting the opinions of Drs. Teague and Brahms, nor does he
claim the ALJ’s finding of improvement is not supported by substantial evidence.
Accordingly, this assignment of error is without merit.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: May 17, 2016
18
Plaintiff claims the ALJ failed to address the August 2009 opinion of state
agency physician Dr. Villanueva. (Tr. 547-554.) Among other things, Dr.
Villanueva opined Plaintiff could stand and/or walk for a total of four hours in
an eight hour work day. (Tr. 549.) Even if the ALJ failed to reference this
particular opinion, any such error is harmless. Dr. Teague offered the same
opinion as Dr. Villanueva regarding Plaintiff’s standing capacity, and the ALJ
articulated sufficient reasons for rejecting that opinion. Under these
circumstances, it would be a pointless formality to remand.
51
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?