Puckett v. Commissioner of Social Security
Filing
15
Memorandum Opinion and Order affirming the final decision of the Commissioner. Magistrate Judge Nancy A. Vecchiarelli on 4/21/2014. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MISTY PUCKETT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
)
)
)
)
)
)
)
)
)
)
CASE NO. 3:13-CV-01486
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Defendant.
Plaintiff, Misty Puckett (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”), denying
her applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”),
and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant
to 42 U.S.C. § 405(g). 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
On February 8, 2010, Plaintiff filed her applications for SSI, POD, and DIB and
alleged a disability onset date of October 14, 2009. (Transcript (“Tr.”) 13.) The
applications were denied initially and upon reconsideration, and Plaintiff requested a
hearing before an administrative law judge (“ALJ”). (Id.) On February 1, 2012, an ALJ
held Plaintiff’s hearing. (Id.) Plaintiff participated in the hearing, was represented by
counsel, and testified. (Id.) A vocational expert (“VE”) also participated and testified.
(Id.) On March 6, 2012, the ALJ found Plaintiff not disabled. (Tr. 10.) On June 12,
2013, the Appeals Council declined to review the ALJ’s decision, and the ALJ’s decision
became the Commissioner’s final decision. (Tr. 1.)
On July 10, 2013, Plaintiff filed her complaint to challenge the Commissioner’s
final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc.
Nos. 11, 12.)
Plaintiff asserts the following assignments of error: (1) The ALJ erred in
determining Plaintiff’s residual functional capacity; and (2) the ALJ’s Step Five
determination is contrary to law because it failed to take into consideration all of the
signs and symptoms that flow from Plaintiff’s severe impairments.
II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was born in July 1974 and was 35-years-old on the alleged disability
onset date. (Tr. 22.) She had at least a high school education and was able to
communicate in English. (Id.) She had past relevant work as a certified nurse assistant
and a personal care aide. (Id.)
B.
Medical Evidence
1.
Physical Impairments
a.
Medical Reports
In February 2009, Plaintiff sustained a work-related injury that was initially
2
diagnosed as an ankle sprain. (Tr. 362-363.) Leamon Williams, M.D., prescribed an
ankle walker and recommended that Plaintiff alternate sitting/standing work, with sitting
40% of the workday. (Tr. 363.) On February 6, 2009, Dr. Williams noted that Plaintiff
complained of a “funny feeling” at her Achilles insertion that caused her great pain. (Tr.
361.) Dr. Williams reported that pain pills were controlling Plaintiff’s pain and that
wearing a boot was also helping. (Id.) Dr. Williams recommended that Plaintiff
continue working but “with sit-down only work.” (Id.) On February 12, 2009, an MRI
revealed “some mild tendonitis, but not acute tendonitis or tear.” (Tr. 359.)
On March 16, 2009, Scott D. Karr, M.D., performed a right secondary Achilles
tendon repair, gastrocnemius recession, and excision of Haglund deformation. (Tr.
349-351.) On June 9, 2009, Dr. Karr noted that Plaintiff was doing well postoperatively, and placed temporary work restrictions on her by limiting her to “sitting
work” for three weeks. (Tr. 343.) He instructed Plaintiff to return to work with modified
duties for four weeks beginning on February 3, 2010, with a restriction to sitting work
only and weight-bearing as tolerated. (Tr. 320.) On February 15, 2010, Dr. Karr found
that Plaintiff had reached maximum medical improvement1 for worker’s compensation
purposes. (Tr. 318.)
On August 30, 2010, Plaintiff visited the emergency room complaining that she
had stood up and developed sudden severe pain in the posterior aspect of her ankle.
(Tr. 413.) On examination, Plaintiff had good dorsiflexion and plantar flexion of her
1
“Maximum medical improvement” in the context of workers compensation
occurs when an injured employee reaches a point where her condition
cannot be improved any further.
3
ankles bilaterally. (Id.) She had normal peroneal tendon strength but decreased
strength in the right ankle secondary to pain. (Id.) She had no instability of the ankles,
but was tender over the insertion of the Achilles tendon. (Id.) Her ankle x-ray showed
no evidence of talar joint arthritis. (Id.) Plaintiff’s MRI was interpreted as showing an
osteochondral lesion of the medial talar dome with associated edema, with postsurgical
changes and thickening of the Achilles’ tendon, without evidence of a re-tear. (Tr. 415,
500.) She was diagnosed with tendonitis, provided a supply of Vicodin, and instructed
to wear a supportive shoe. (Tr. 413-414.)
b.
Agency Reports
On December 3, 2010, consultative examiner Lamberto Diaz, M.D., concluded
that Plaintiff was unable to perform even sedentary work due to her mental and physical
condition. (Tr. 459.) He stated that Plaintiff’s diabetes mellitus was poorly controlled
and that she was very obese and not very muscular. (Tr. 459.) He added that her
ruptured Achilles tendon required her to wear a brace, walk slowly, and use a cane or
walker for ambulation. (Tr. 458.)
On February 10, 2011, W. Jerry McCloud, M.D., a state agency physician,
reviewed the available evidence and rejected Dr. Diaz’s opinion, finding “nothing in the
file to indicate that [Plaintiff] cannot sit.” (Tr. 487.) Dr. McCloud indicated that Dr.
Diaz’s opinion was “not consistent with the medical evidence,” and contained “internal
inconsistency.” (Id.) Dr. McCloud opined that Plaintiff was capable of performing a
limited range of light exertion work. (Tr. 482-483.) On June 14, 2010, state agency
physician Sarah Long, M.D., reviewed and affirmed Dr. McCloud’s opinion, finding that
4
Plaintiff was capable of a limited range of light exertion work. (Tr. 399-406.)
2.
Mental Impairments
a.
Medical Reports
Plaintiff has been diagnosed with a bipolar mood disorder. (Tr. 273-274.) In
2004, she was hospitalized for an attempted suicide by overdose of Klonopin and
Skelaxin. (Tr. 273.) At the time, Plaintiff was upset because her mother had been
paying more attention to her boyfriend, and Plaintiff felt rejected and attempted to
overdose. (Tr. 273-274.) Plaintiff thereafter sought mental health treatment at
Westwood Behavioral Health Center (WBHC), which continued through March 2005.
(Tr. 479.) She returned to WBHC after “a long period of absence” in December 2010,
after she filed for disability benefits. (Id.) She reported that she had been hearing
voices, which was causing her anxiety. (Id.) When her Celexa was discontinued, the
auditory experiences stopped, but she continued to hear voices. (Id.)
During Plaintiff’s December 9, 2010, mental status examination with A.Y.
Demosthene, M.D., Plaintiff’s mood was depressed with episodic anxiety. (Id.) Her
speech was logical, non-pressured, and organized. (Id.) She denied hallucinations and
delusions, and homicidal or suicidal ideation. (Id.) Plaintiff was alert, had good word
comprehension, and was aware of her surroundings and current events. (Id.) She had
no memory deficits and her insight and judgment were normal. (Id.) Dr. Demosthene’s
diagnostic impression was mood disorder, with the need to rule-out bipolar disorder.
(Id.) He prescribed Abilify and Lamictal for Plaintiff’s mood symptoms, Celexa, an antidepressant, and Ambien, a sleep aide. (Id.)
5
Plaintiff had a follow-up exam with Dr. Demosthene on January 20, 2011. (Tr.
480.) At that time, Plaintiff’s mood was not depressed. (Id.) She described her affect
as very labile during her menstrual cycle. (Id.) She stated that Lamictal had stabilized
her moods and that she was sleeping better on Ambien. (Id.) Her appearance was
good, and her speech was articulate and normal. (Id.) She denied hallucinations,
delusions, and homicidal or suicidal ideation. (Id.) Plaintiff was alert, had good word
comprehension, and was aware of her surroundings and current events. (Id.) She had
no memory deficit and her insight and judgment were good. (Id.) Dr. Demosthene
diagnosed bipolar disorder NOS and adjusted her medication dosages. (Id.)
During Dr. Demosthene’s April 14, 2011, examination, Plaintiff was upset
because she had been denied Social Security benefits, while her husband’s disability
claim had been approved. (Tr. 521.) Her appearance was good, and her speech was
articulate, but lacked spontaneity. (Id.) She denied hallucinations, delusions, and
homicidal or suicidal ideation. (Id.) She was alert, had good word comprehension, and
was aware of her surroundings and current events. (Id.) She had no memory deficit
and her insight and judgment were limited. (Id.)
During Plaintiff’s June 9, 2011, exam, her appearance was good, and her
speech was articulate and spontaneous. (Tr. 522.) She denied hallucinations,
delusions, and homicidal or suicidal ideation. (Id.) She was alert, had good word
comprehension, and was aware of her surroundings and current events. (Id.) She had
no memory deficit and her insight and judgment were somewhat limited. (Id.)
At her September 15, 2011, appointment with Dr. Demosthene, Plaintiff was
6
cooperative and appeared relaxed during the evaluation. (Tr. 523.) She presented her
mood as depressed, and her affect was blunted and restricted in range. (Id.) Her
thought process and speech were organized, slow, and goal-directed. (Id.) She denied
hallucinations and delusions and had no suicidal or homicidal thoughts. (Id.) Plaintiff
was alert and aware of her surroundings and of current events. (Id.) Her insight and
judgment were not impaired. (Id.)
At her October 13, 2011, appointment with Dr. Demosthene, Plaintiff was in good
spirits. (Tr. 524.) She stated that Bupropion had helped her anxiety and depression.
(Id.) She was cooperative and sociable during the evaluation. (Id.) Her mood was not
eurhythmic, her affect was in normal range, and her thought process was appropriate.
(Id.) Her pattern of speech was organized and goal directed, and she denied any
hallucinations, delusions, and suicidal or homicidal ideation. (Id.) Plaintiff was alert and
aware of her surroundings and current events, and her insight and judgment were not
impaired. (Id.) Her mood medications were continued, and her sleeping medications
were adjusted. (Id.)
b.
Agency Reports
On May 6, 2010, psychologist Paul A. Deardorff, Ph.D., conducted a mental
examination of Plaintiff at the request of the Bureau of Disability Determination. (Tr.
372-378.) During the exam, Plaintiff reported that she had abused alcohol from the age
of 16 “until a couple weeks ago.” (Tr. 373.) She reported having been arrested as an
adult for theft and jailed for 30 days. (Id.) She stated that she had worked steadily until
injuring her Achilles tendon in 2009, but that she had been terminated from many other
7
jobs in her life for not showing up for work or “calling in dead.” (Tr. 374.) Dr. Deardorff
described Plaintiff as cooperative, with adequate grooming and hygiene. (Id.) She
walked with a noticeable limp, appeared to be anxious and depressed, but displayed no
other eccentricities of manner. (Id.) Her conversation was neither pressured nor
slowed, she displayed no loose associations or flight of ideas, and her speech was
adequately organized and easily followed. (Id.) Her phraseology, grammatical
structure, and vocabulary suggested that she was of average intelligence. (Id.)
Plaintiff reported to Dr. Deardorff that she had attempted suicide in the past but
was receiving no mental health treatment. (Tr. 375.) She stated that she left her home
“just to go to school,” she had no friends, and she visited her mother weekly and saw
her daughter on a daily basis. (Tr. 376.) Plaintiff reported that she enjoyed crocheting
and doing crossword puzzles, and she assisted with the household chores. (Id.) Dr.
Deardorff concluded that Plaintiff’s ability to relate to others was limited between
moderate to marked; her ability to understand, remember, and follow simple
instructions was moderately limited; her concentration, persistence, and pace were
moderately limited; and her ability to withstand the stress and pressures of daily work
was markedly limited. (Tr. 377-378.)
On June 1, 2010, state agency psychologist David Dietz, Ph.D., reviewed the
available evidence and rendered a mental residual functional capacity assessment.
(Tr. 395-398.) Dr. Dietz disagreed with Dr. Deardorff’s opinion and found that Plaintiff
was less than fully credible due to inconsistencies between her statements during the
examination and the evidence in her file. (Tr. 397-398.) Dr. Dietz found that Plaintiff
was no more than moderately limited in all of the areas related to her mental ability to
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work. (Id.) On February 10, 2011, and March 15, 2011, Patricia Semmelman, Ph.D., a
state agency psychologist, reviewed the available records and affirmed Dr. Dietz’s
opinion. (Tr. 489.)
On October 16, 2010, Neil Shamberg, Ph.D., performed a mental status
evaluation and mental functional capacity assessment. (Tr. 526-534, 540.) Dr.
Shamberg diagnosed Plaintiff with bipolar disorder, anxiety disorder NOS, and a
learning disorder NOS. (Tr. 530.) He concluded that Plaintiff’s ability to relate to others
was markedly limited; her ability to understand, remember, and follow simple
instructions was moderately limited; her ability to understand, remember, and follow
simple instructions was moderately limited; her concentration, persistence, and pace
was mildly limited; and her ability to withstand the stress and pressures of daily work
was markedly limited. (Tr. 531.) Dr. Shamberg assigned Plaintiff a Global Assessment
of Functioning (GAF) score of 41.2 (Id.)
On November 4, 2010, psychologist Christopher C. Ward, Ph.D., conducted a
mental status examination. (Tr. 446-450.) Plaintiff described herself as a 36-year-old
married woman who lived with her husband. (Tr. 446.) She stated that she had no
income and her husband received unemployment benefits. (Id.) She indicated that she
was applying for disability benefits because her racing thoughts had turned into voices
over the last several months and that she felt like she was “in an overcrowded room,
2
The GAF scale incorporates an individual’s psychological, social, and
occupational functioning on a hypothetical continuum of mental health
illness devised by the American Psychiatric Association. A GAF score
between 41 and 50 indicates serious symptoms or any serious impairment
in social, occupational, or school functioning.
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and wanted to scream.” (Tr. 446.) Plaintiff reported a good relationship with her
current husband. (Id.) She admitted to spending 30 days in jail for theft and endorsed
a history of alcohol and illicit drug abuse, but denied drug and alcohol abuse over the
past several months. (Tr. 447.) She stated that she had received treatment for bipolar
affective and anxiety disorders, including medication and counseling. (Id.) Her
conversation was neither pressured nor slowed, she displayed no loose associations or
flight of ideas, and her speech was adequately organized and easily followed. (Tr.
448.) Her phraseology, grammatical structure, and vocabulary suggested that she was
of average intelligence. (Id.)
Plaintiff was anxious and reported symptoms of depression. (Id.) She reported
that her most recent mental health hospitalization was in 2003, and that she was not
receiving any current mental health treatment. (Id.) Her remote recall was adequate,
her short-term memory was below average, and her attention and concentration skills
were somewhat limited. (Id.) Dr. Ward opined that Plaintiff was unable to withstand the
stress and pressure associated with day-to-day work activity and was markedly
impaired by her mental health difficulties. (Tr. 449.) He concluded that stress and
pressure would exacerbate Plaintiff’s problems with mood, leading to emotional
breakdowns and further withdrawal behavior. (Id.)
C.
Hearing Testimony
1.
Plaintiff’s Hearing Testimony
Plaintiff last worked in October 2009. (Tr. 39.) She ruptured her Achilles tendon
of her right foot in 2008 and had surgery to repair it in March of 2009. (Tr. 40.) She re-
10
injured it about four or five times since then and suffered from tendonitis. (Id.) She
experienced sharp pain in her foot, and if she stood for more than ten minutes, her
entire leg would go numb. (Id.) She wore a boot so that she did not overstress her
Achilles tendon. (Tr. 42.) Wearing the boot caused her to stand unevenly, which made
her hips hurt. (Tr. 42-43.) Plaintiff testified that she also had uncontrolled diabetes,
neuropathy on both of her feet, and hypothyroidism. (Tr. 43-44.)
Plaintiff had a bipolar condition. (Tr. 45.) She testified that when she was not
medicated, she would experience psychotic episodes where she would have audio and
visual hallucinations and hear people talking to her. (Tr. 45-46.) She took medication
for her bipolar condition, which caused her to feel tired and unfocused. (Tr. 46.)
Plaintiff could do dishes, prepare food, fold laundry, bathe herself, and shop at
WalMart. (Tr. 48-50.) She had a good friend that assisted her and her husband with
their grocery shopping. (Tr. 49.) She used a cane, which was prescribed by her doctor.
(Tr. 49, 53.) She had a driver’s license but did not drive. (Tr. 50.) On a typical day,
Plaintiff would do crossword puzzles, play on her computer and on Facebook, read, and
watch TV. (Tr. 51.) Plaintiff testified that being in a group of people terrified her. (Id.)
2.
Vocational Expert’s Hearing Testimony
Sharon Ringenberg, a vocational expert, testified at Plaintiff’s hearing. The VE
testified that Plaintiff’s past relevant work was primarily as a certified nurse assistant
and a personal care aid. (Tr. 58.)
The ALJ asked the VE to consider a hypothetical individual of Plaintiff’s age,
education, and work experience who was limited to performing sedentary work involving
11
only two hours of standing or walking and six hours of sitting per workday. (Tr. 58-59.)
The individual would also be limited to simple, routine, repetitive tasks; work where
there is no required production rate or pace; and only occasional interaction with the
public and with coworkers. (Tr. 59.) The VE testified that the hypothetical individual
would be capable of performing a significant number of jobs available in either the
regional or national economy, including an addressor, a table worker, and a
surveillance system monitor. (Tr. 60.) The VE indicated that if the hypothetical
individual was also limited to work involving only simple work-related decisions and few,
if any, workplace changes, the individual could not perform work as a surveillance
system monitor but could work as an optical final assembler. (Tr. 61.)
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when she
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 she cannot perform “substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 416.905(a).
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 she is not currently engaged in “substantial gainful activity” at the time she seeks
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disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she 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 her from doing her
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 her from doing her 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 meets the insured status requirements of the Social
Security Act through December 31, 2014.
2.
The claimant has not engaged in substantial gainful activity since
October 14, 2009, the alleged onset date.
3.
The claimant has the following severe impairments: torn Achilles
tendon status post repair, obesity, diabetes mellitus, bipolar disorder,
osteoarthritis of the right knee, and moderate degenerative changes
in the right knee.
4.
The claimant does not have an impairment or combination of
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impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5.
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except she can lift and carry 10 pounds occasionally and five pounds
frequently; stand/walk two hours out of an eight-hour day; sit six
hours out of an eight-hour day; never climb ladders, ropes, or
scaffolds; work should be limited to simple, routine, and repetitive
tasks; no fast paced production requirements; work should involve
only simple, work-related decisions and few, if any, work place
changes; and she should have only occasional interaction with
coworkers or public.
6.
The claimant is unable to perform any past relevant work.
7.
The claimant was born in July 1974 and was 35-years-old, which is
defined as a younger individual age 18-44, on the alleged disability
onset date.
8.
The claimant has at least a high school education and is able to
communicate in English.
9.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills.
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform.
11.
The claimant has not been under a disability, as defined in the Act,
from October 14, 2009, through the date of this decision.
(Tr. 15-23.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
14
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
the opposite conclusion. Ealy, 594 F.3d at 512.
B.
Plaintiff’s Assignments of Error
1.
The ALJ Erred in Determining Plaintiff’s Residual Functional
Capacity.
Plaintiff argues that the ALJ’s residual functional capacity (RFC) finding is
“completed devoid of . . mandatory legal analysis.” (Plaintiff’s Brief (“Pl.’s Br.”) 8.)
Specifically, Plaintiff contends that the ALJ disregarded the material portions of the
15
reports of four acceptable medical sources: (1) Dr. Shamberg’s October 28, 2010,
opinion that Plaintiff has a GAF score of 41 and is markedly impaired in her ability to
relate to others and in her ability to withstand the stress and pressures associated with
day-to-day work activity (Tr. 531); (2) Dr. Diaz’s December 3, 2010, consultative report
opining that Plaintiff is unable to perform even sedentary work (Tr. 459); (3) Dr.
Deardorff’s May 6, 2010, report finding that Plaintiff has a GAF score of 49 and is
markedly impaired in her ability to withstand the stress and pressure associated with
day-to-day work activity (Tr. 377-378); and (4) Dr. Ward’s November 4, 2010, opinion
that Plaintiff has a GAF score of 47 and is markedly impaired in her ability to relate to
others including fellow workers and supervisors and in her ability to withstand the stress
and pressure associated with day-to-day work activity. (Tr. 450.) For the following
reasons, Plaintiff’s argument is not well taken.
It is well established that an ALJ is not required to discuss each and every piece
of evidence in the record for her decision to stand. See, e.g., Thacker v. Comm’r of
Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004). However, where the opinion of a
medical source contradicts his RFC finding, an ALJ must explain why he did not include
its limitations in his determination of a claimant’s RFC. See, e.g., Fleischer v. Astrue,
774 F. Supp. 2d 875, 881 (N.D. Ohio 2011) (Lioi, J.) (“In rendering his RFC decision,
the ALJ must give some indication of the evidence upon which he is relying, and he
may not ignore evidence that does not support his decision, especially when that
evidence, if accepted, would change his analysis.”). Social Security Ruling 96-8p
provides, “[t]he RFC assessment must always consider and address medical source
16
opinions. If the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL
374184, *7 (July 2, 1996).
Here, as the Commissioner notes, Plaintiff seemingly invokes the “good reasons”
requirement of the treating physician rule3 to argue that the ALJ erred by failing to
provide valid reasons for assigning less than controlling weight to the opinions of Drs.
Diaz, Deardorff, Ward, and Shamberg. The aforementioned professionals, however,
were consultative examiners, not treating physicians. As a result, the ALJ was not
required to evaluate their opinions with the same standard of deference as he would
have applied to an opinion rendered by a treating physician who had an ongoing
treatment relationship with Plaintiff. Because Drs. Diaz, Deardorff, Ward, and
Shamberg were consultative examiners, the ALJ was required only to acknowledge that
their opinions contradicted his RFC finding, and explain why he did not include their
3
A treating source is defined as “your own physician, psychologist, or other
acceptable medical source who provides you, or has provided you, with
medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.” 20 C.F.R. § 404.1502. Generally, an
ongoing treatment relationship exists when the patient sees or has seen
the treating source with a frequency consistent with accepted medical
practice for the type of evaluation required for the medical condition at
issue. Id. “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.)).
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limitations in his determination of Plaintiff’s RFC. A review of the ALJ’s decision
indicates that the ALJ adequately explained why he chose to give only “little” or “partial”
weight to their opinions. (Tr. 19-21.)
•
Dr Diaz: The ALJ gave little weight to Dr. Diaz’s December 2010
opinion that Plaintiff is unable to do even sedentary work, because the
ALJ found that opinion inconsistent with the record as a whole. (Tr.
19.) Furthermore, the ALJ noted that “Dr. Diaz’s entire report is based
on the claimant’s own subjective explanation of her impairments and
limitations and are not supported by the testing performed by Dr. Diaz
on the claimant which were within normal limits, though he did not test
the limits of her right ankle.” (Tr. 19.) Plaintiff incorrectly maintains that
“no acceptable medical source supports a finding that Dr. Diaz’s
opinion is ‘inconsistent with the record as a whole.’” In February 2011,
however, state agency physician Dr. McCloud reviewed the available
evidence and rejected Dr. Diaz’s opinion, finding “nothing in the file to
indicate that [Plaintiff] cannot sit.” (Tr. 487.) Dr. McCloud indicated
that Dr. Diaz’s opinion was “not consistent with the medical evidence,”
and contained “internal inconsistency.” (Id.)
•
Dr. Deardorff and Dr. Ward: The ALJ gave partial weight to Dr.
Deardorff’s conclusions, noting that they were “only partially consistent
with the record as a whole.” (Tr. 21.) The ALJ further stated that “[h]is
conclusions regarding the claimant’s moderate limitations are
consistent with the record, but the record does not support any marked
limitations.” (Id.) In assessing Dr. Deardorff’s opinion, the ALJ cited to
Exhibit 7F, which coincides with a May 2010 opinion from Dr. Deardorff,
as well as Exhibit 14F, which is an opinion signed by Dr. Ward, not Dr.
Deardorff. (Tr. 21.) Thus, as Plaintiff notes, the ALJ mistakenly
attributed Dr. Ward’s opinion to a second opinion by Dr. Deardorff. The
ALJ’s error is immaterial, however, as he considered the substance of
Dr. Ward’s opinion and addressed it, even though he erroneously
attributed the opinion to Dr. Deardorff. Furthermore, while Plaintiff
contends that “[n]o acceptable medical source supports the ALJ’s
assertion that [Dr. Deardorff’s] (and apparently Dr. Ward’s) favorable
opinions are only partially ‘consistent with the records as a whole,’”
Plaintiff is mistaken. (Pl.’s Br. 10.) In June 2010, state agency
psychologist Dr. Dietz disagreed with Dr. Deardorff’s opinion and found
that Plaintiff was less than fully credible due to inconsistencies between
her statements during the examination and the evidence in her file. (Tr.
397-398.) Dr. Dietz found that Plaintiff was no more than moderately
limited in all of the areas related to her mental ability to work. (Id.)
State agency psychologist Dr. Semmelman affirmed this opinion. (Tr.
18
489.)
•
Dr. Shamberg: The ALJ gave little weight to Dr. Shamberg’s opinion
that Plaintiff suffered from anxiety and a learning disorder, noting that
those diagnoses were “not fully supported by the record.” (Tr. 21.) The
ALJ gave partial weight to Dr. Shamberg’s opinion that Plaintiff’s ability
to relate to others was markedly limited; her ability to understand,
remember, and follow simple instructions was moderately limited; her
concentration, persistence, and pace was mildly limited; and her ability
to withstand the stress and pressures of daily work was markedly
limited. (Tr. 21.) The ALJ found Dr. Shamberg’s opinion only partially
consistent with the record as a whole. (Id.) Furthermore, the ALJ
noted that “the claimant’s descriptions of her past experiences and
current limitations were not fully consistent and therefore Dr.
Shamberg’s opinion cannot be given great weight as he would have
had to rely on these statements from the claimant.” (Id.)
In addition to discussing each of the four opinions above individually and
explaining why he failed to give the opinions great weight, the ALJ specifically
acknowledged in his decision that he considered “claimant’s credibility as well as the
conclusion of the treating and consultative examiners” when determining Plaintiff’s
RFC. (Tr. 20.) The ALJ explained that “[t]his is important, especially when it comes to
consultative examiners because they rely on the claimant to be forthright when
describing their mental health issues more than a treating doctor who would see the
claimant on a regular basis and would have the opportunity to flush out any
inconsistencies.” (Id.) Thus, the ALJ was clear in that one of the reasons he
rejected some of the consultative examiners’ opinions is because they relied heavily on
Plaintiff’s own reports, which the ALJ found to be less than fully credible for specific
reasons which he articulated. (Id.) In determining that Plaintiff was less than fully
credible with regard to her complaints of disabling conditions, the ALJ noted:
•
Plaintiff’s activities of daily living include adaptive activities such as
cleaning, shopping, cooking, taking public transportation, paying bills,
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maintaining a residence, caring appropriately for grooming and
hygiene, using telephones and directories, and using a post office. (Tr.
16.)
•
Plaintiff goes to school on a daily basis. (Id.)
•
Plaintiff assists with the household chores and showers two to three
times a week. (Id.)
•
Plaintiff reads before bed and enjoys crochet and crossword puzzles
as hobbies. (Id.)
•
Plaintiff sees her daughter daily. (Id.) She has reported both that she
has a poor relationship with her daughter and that her daughter is her
best friend. (Tr. 20.)
•
Plaintiff lives with her fiancé with whom she gets along. (Id.)
•
Plaintiff reported abuse by her sister, an ex-boyfriend, and a man who
lived with her, but other records indicate that she had denied any kind
of abuse history. (Id.)
•
Plaintiff reported that she could not comprehend anything nor do
anything, yet no problems with comprehension had been observed
otherwise. (Id.)
•
Plaintiff reported that she had a series of short inpatient stays including
one in November 2010, but the medical record showed that the only
previous inpatient stay was in 2004. (Id.)
•
Plaintiff did not report any type of posttraumatic stress disorder symptoms
to some doctors yet alluded to such at the consultative examination. (Id.)
Thus, the ALJ considered the medical record as a whole as well as Plaintiff’s
credibility in giving only “little” or “partial” weight to the opinions of the consultative
examiners.
The ALJ’s assessment of Drs. Diaz, Deardorff, Shamberg, and Ward’s opinions
is sufficiently clear to allow meaningful judicial review. While the aforementioned
opinions may be favorable to Plaintiff, the ALJ has adequately explained why he chose
20
not to rely on them in determining Plaintiff’s RFC. As Defendant correctly notes,
Plaintiff’s disagreement with how the ALJ weighed and resolved the medical opinion
evidence is not a valid basis for reversing the ALJ’s decision. See Bass v. McMahon,
499 F.3d 506, 509 (6th Cir. 2007) (“If the ALJ’s decision is supported by substantial
evidence, then reversal would not be warranted even if substantial evidence would
support the opposite conclusion.”) Here, the ALJ’s RFC determination is supported by
substantial evidence in the record. While Plaintiff purports to argue that the ALJ relied
solely on state agency psychologist Dr. Dietz’s June 2010 opinion to determine
Plaintiff’s RFC, Plaintiff is mistaken. A review of the ALJ’s detailed decision indicates
that he considered the evidence as a whole and did not rely entirely on a single piece of
evidence while disregarding other pertinent evidence. For the foregoing reasons,
Plaintiff’s first assignment of error does not present a basis for remand.
2.
The ALJ’s Step Five Determination is Contrary to Law Because
It Fails to Consider All of the Signs and Symptoms that Flow
from Plaintiff’s Severe Impairments.
Plaintiff argues that the ALJ’s hypothetical question to the VE failed to accurately
depict all of the limitations that flow from Plaintiff’s markedly impaired ability to
withstand the stress and pressure associated with day-to-day work activity. Dr. Ward
opined that Plaintiff is unable to withstand the stress and pressure associated with dayto-day work activity and is markedly impaired by her mental limitations. (Tr. 450.) As
discussed previously, the ALJ acknowledged this opinion, but concluded that “the
record as a whole does not support any marked limitations.” (Tr. 21.) Because the ALJ
did not find that Plaintiff had any marked limitations, he was not required to include a
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limitation concerning Plaintiff’s ability to withstand the stress and pressures of daily
work in Plaintiff’s RFC. The ALJ adequately accounted for Plaintiff’s credible mental
limitations by limiting her to simple, routine, repetitive tasks; no fast-paced production
requirements; simple, work-related decisions; few, if any, workplace changes; and only
occasional interaction with the public and co-workers. (Tr. 17.) Accordingly, Plaintiff’s
second 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: April 21, 2014
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