Brown v. Commissioner of Social Security Administration
Filing
19
Opinion and Order signed by Judge James S. Gwin on 11/18/15 adopting the Report and Recommendation of the Magistrate Judge and affirming the denial of benefits by the Commissioner. (Related Docs. 1 and 16 ) (W,M)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
OSAMEDE BROWN,
:
:
Plaintiff,
:
:
vs.
:
:
CAROLYN V. COLVIN, Acting
:
Commissioner of Social Security,
:
:
Defendant.
:
:
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CASE NO. 5:15-CV-00014
OPINION & ORDER
[Resolving Doc. 1]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this social-security disability benefits case, Plaintiff Osamede Brown objects to the
Magistrate Judge’s Report and Recommendation, which recommends affirming the Administrative
Law Judge’s (“ALJ”) denial of benefits. Because the ALJ had substantial evidence supporting his
decision, the Court ADOPTS the recommendation of the Magistrate Judge and AFFIRMS the
ALJ’s denial of benefits.
I. Background
On May 10, 2011, Brown filed applications for Supplemental Security Income. She alleged
a January 1, 2010 disability onset date. After her applications were denied initially and upon
reconsideration, Brown requested a hearing before an ALJ.
Brown appeared with counsel at a hearing before ALJ Michael Kaczmarek.1/ Brown testified
that she has experienced seizures since she was nine years old and that they prevent her from
1/
Doc. 11 at 73–122.
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Gwin, J.
working.2/
Vocational expert Brian Womer (“VE”) testified that there would be work available for a
hypothetical individual the same age as and with the same education and work history as Brown who
has an Residual Functional Capacity with no exertional limitations but with the following
limitations: can never climb ladders, ropes, and scaffolds; must avoid all exposure to hazards such
as inherently dangerous moving machinery and unprotected heights; must avoid concentrated
exposure to environmental irritants, such as fumes, odors, dusts, gases, and areas of poor ventilation;
and no commercial driving.3/
The VE indicated that if an individual would be absent from work two days per month, the
individual would not be able to maintain the jobs the VE identified and there were no additional jobs
that the VE could identify.4/
On August 6, 2013, the ALJ determined that Brown was not disabled within the meanings
of the Social Security Act. Magistrate Judge Burke summarized the ALJ’s findings as follows:
1. Brown had not engaged in substantial gainful activity since May 10, 2011, the
application date.5/
2. Brown had the following severe impairments: seizure disorder diagnosed as
complex partial seizures with history of grand mal seizure diagnosis, status post
(“s/p”) February 2008 left temporal lobectomy; history of asthma progressing to
chronic obstructive pulmonary disease (“COPD”); morbid obesity; narcolepsy versus
hypersomnia, NOS. Tr. 45. Brown had the following non-severe impairments:
vitamin-D deficiency; Chiari I malformation; migraine headaches; obstructive sleep
apnea; carpal tunnel syndrome; and adjustment disorder with mixed depressed mood
2/
Brown’s arguments relate primarily to the ALJ’s consideration of evidence regarding her seizures. Thus, the
evidence summarized herein relates generally to Brown’s seizures.
3/
Doc. 11 at 112–113.
4/
Id. at 115–116.
5/
Id. at 45.
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Gwin, J.
and anxiety.6/
3. Brown did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments, including Listings
11.02 – Convulsive epilepsy - and 11.03 – Nonconvulsive epilepsy.7/
4. Brown had the RFC to perform a full range of work at all exertional levels but
with the following non-exertional limitations: can never climb ladders, ropes, or
scaffolds; should avoid all exposure to hazards, such as inherently dangerous moving
machinery and unprotected heights; cannot engage in commercial driving; should
avoid concentrated exposure to excessive heat, cold, and humidity and to
environmental irritants such as fumes, odors, dust, gases, and areas of poor
ventilation; can understand, remember, and carry out simple, routine, and repetitive
tasks that could be learned in 30 days or less; and requires a low stress, static work
environment with infrequent changes, and those changes that did occur would be
explained and/or demonstrated to her; with no fast pace or strict production/time
quotas; and with her not being responsible for the health or safety of others.8/
5. Brown had no past relevant work.9/
6. Brown was born in 1985 and was 25 years old, which is defined as a younger
individual age 18-49, on the date the application was filed.10/
7. Brown had at least a high school education and was able to communicate in
English.11/
8. Transferability of job skills was not an issue because Brown did not have past
relevant work.12/
9. Considering Brown’s age, education, work experience and RFC, there were jobs
that existed in significant numbers in the national economy that Brown could
perform, including hand packager, machine packager, and kitchen helper.13/
6/
Id. at 45–49.
7/
Id. at 49–51.
8/
Id. at 51–61.
9/
Id. at 61.
10/
Id.
11/
Id.
12/
Id.
13/
Id. at 61–62.
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Gwin, J.
Brown filed this complaint, and the Court referred the matter to Magistrate Judge Kathleen
B. Burke. Magistrate Judge Burke issued a Report and Recommendation, finding that the ALJ’s
determination was supported by substantial evidence and recommending that the Court deny
Brown’s appeal.14/ Specifically, the Magistrate Judge found: (1) that the ALJ evaluated the treating
source opinions in accordance with the treating physician rule (2) that the ALJ properly assessed
Brown’s credibility.15/
Brown now objects to the R&R.16/ This Court reviews the objections de novo.17/ Brown
argues that the ALJ’s stated reasons for discounting the weight assigned to Dr. Kinast’s and Dr.
Bavis’ opinions did not constitute “good reasons” under the relevant rules, regulations, and case law.
Specifically, Brown contends that the ALJ’s finding that Brown was non-compliant in taking her
medication was misplaced and not reasonable.
II. Legal Standard
In reviewing an ALJ’s disability determination under the Social Security Act, a district court
is limited to reviewing whether the ALJ’s decision is “supported by substantial evidence and is made
pursuant to proper legal standards.”18/ Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”19/ A district court should not
14/
Doc. 16.
15/
Id.
16/
Doc. 17.
17/
28 U.S.C. § 636(b)(1) (requiring de novo review of the claimant’s objections to a report and
recommendation).
18/
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); see also 42 U.S.C. § 405(g).
19/
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
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try to resolve “conflicts in evidence or decide questions of credibility,”20/ and may not reverse an
ALJ’s decision when substantial evidence supports it, even if the court would have made a different
decision.21/
To establish disability under the Social Security Act, Plaintiff must show that she cannot
engage in any substantial gainful activity because of a “medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months.”22/ Plaintiff’s impairment must prevent her from
doing her previous work or any other work existing in significant numbers in the national
economy.23/
III.Discussion
A. The ALJ’s stated reasons for discounting the testimony of Dr. Kinast and Dr. Bavis constituted
“good reasons.”
First, Brown argues that the ALJ’s stated reasons for discounting the weight assigned to Dr.
Kinast’s and Dr. Bavis’ opinions did not constitute “good reasons.” However, this Court agrees with
the Magistrate Judge that the ALJ did substantiate his decision with “good reasons.”
Under the treating physician rule, “treating source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable clinical
and laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the other
20/
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
21/
Siterlet v. Sec. of Health and Human Servs., 823 F.2d 918, 920 (6th Cir. 1987).
22/
See 42 U.S.C. 423(d).
23/
Id.
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substantial evidence in [the] case record.”24/
However, an ALJ is allowed to give a treating source’s opinion less controlling weight so
long as he gives “good reasons” for doing so. “Good reasons” are reasons 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.25/
In deciding the weight to be given to the treating physician’s opinion, the ALJ must consider
factors such as (1) the length of the treatment relationship and the frequency of the examination, (2)
the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the
consistency of the opinion with the record as w hole, (5) the specialization of the source, and (6) any
other factors that tend to support or contradict the opinion.26/ However, the ALJ is not required to
provide “an exhaustive factor-by factor analysis.”27/
First, the ALJ explained his decision to give little weight28/ to the opinions of Drs. Kinast and
Bavis by reiterating, “their reports that the claimant is fully compliant with taking her medications
is deterred by evidence to the contrary, seriously weakening the accuracy and persuasiveness of their
opinions.”29/ Here, the ALJ was referring to the fact that Brown’s lab work has consistently showed
subtherapeutic phenytoin levels, i.e., less than 10 mg/L.30/ The ALJ reasoned that these
subtherapeutic anticonvulsant levels demonstrated Brown’s lack of compliance with taking her
24/
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c )(2)).
Gayheart, 710 F.3d at 376.
26/
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007).
27/
See Francis v. Comm’r of Soc. Sec., 414 Fed. Appx. 802, 804 (6th Cir. 2011).
28/
The ALJ gave little weight to Brown’s treating physician’s opinions that she would likely miss two or more
days of work per month as a result of her symptoms and that her seizures would be disruptive in the work environment.
However, the ALJ gave partial weight to the balance of Brown’s treating physicians’ opinions that environmental
limitations would be required but exertional limitations would not be required and Brown could handle “moderate
stress.”
29/
Doc. 11 at 60.
30/
Id. at 57.
25/
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medication and thus undermined Drs. Kinast and Bavis’ opinions that Brown was compliant with
taking her medication.
Further, the ALJ cited two emergency room visits made by Brown in 2012. On February 28,
2012, Brown presented to Mercy Medical Center’s emergency room for a seizure. The emergency
room physician noted that Brown, “admitted that she has been cutting back on her benzos because
she was feeling dizzy and so she thought it was part of the Dilantin.”31/ The physician noted his
impression as “acute breakthrough seizure secondary to noncompliance.” Brown received counsel
on the need to take her Dilantin or otherwise risk breakthrough seizures.
On April 4, 2012, Brown had a seizure while visiting her sister at Mercy Medical Center.
Brown’s Dilantin levels were recorded as less than 0.4 mh/L, and the emergency room physician’s
diagnosis of seizure noted a belief that Brown had a seizure because of noncompliance and stress.32/
The ALJ did not err in not considering Brown’s metabolic or absorption rates as a possible
explanations for her subtherapeutic anticonvulsant levels. A finding that an individual’s specific
issues with absorption or metabolism of the drug is the cause of subtherapeutic levels “must be
based on specific descriptive evidence provided by the treating physician.”33/
Here, the treating physicians presented no such evidence. In fact, Dr. Kinast did not answer
a question on the physician questionnaire related to any recent subtherapeutic levels.34/
Further, the ALJ did not err in not re-contacting Dr. Kinast for clarification of his opinion
because the ALJ was able to reach a determination regarding Brown’s disability upon examining
31/
Id. at 564.
Id. at 558.
33/
SSR 87-6, The Role of Prescribed Treatment in the Evaluation of Epilepsy, 1987 WL 109184 (1987).
34/
Doc. 11 at 338.
32/
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the whole record.35/
Moreover, the ALJ’s other stated reasons for discounting Drs. Kinast and Bavis’ opinions
constitute “good reasons.” The ALJ noted that examining the entire record revealed that most of
Brown’s seizures occurred at nighttime, thus undermining Dr. Kinast’s opinion that Brown’s
seizures would likely disrupt co-workers at work.36/ The ALJ similarly did not err in considering the
fact that the postical manifestations of Brown’s seizures and sleepiness were primarily documented
by the treating physicians based on subjective reports rather than objective medical findings.
Finally, although the ALJ did note the possibility of bias on the part of Dr. Kinast, that was
not the ALJ’s sole reason for discounting Dr. Kinast’s testimony.
Accordingly, the ALJ properly concluded that Brown is capable of performing a limited
range of work.
B. The ALJ’s assessment of Brown’s credibility was proper.
Because Plaintiff objected to the Report and Recommendation in whole, this Court assumes
that Plaintiff objects to the Magistrate Judge’s finding that the ALJ properly assessed Brown’s
credibility. This Court agrees with the R&R on this point.
A reviewing court may not “try the case de novo, nor resolve conflicts in evidence, nor
decide questions of credibility.”37/ In reviewing an ALJ’s credibility determination, a court is
“limited to evaluating whether or not the ALJ’s explanations for partially discrediting [the
35/
An obligation to recontact a treating physician arises “only when the information received is inadequate to
reach a determination on claimant’s disability status, not where . . . the ALJ rejects the limitations recommended by that
physician.” Poe v. Comm’r of Soc. Sec., 342 Fed. Appx. 149, 156, n. 3 (6th Cir. 2009); see also Ferguson, 628 F.3d at
274-275 (relying on and quoting Poe, 342 Fed. Appx. 149, 156, n. 3).
36/
Doc. 11 at 60.
37/
Gaffney v. Bowen, 825 F.2d 98 (6th Cir. 1987).
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Gwin, J.
claimant’s testimony] are reasonable and supported by substantial evidence in the record.”38/
This Court finds that the ALJ’s explanations for partially discrediting Brown’s credibility
are reasonable and supported by substantial evidence in the record. Here, the ALJ considered a
number of factors including: the aforementioned medication compliance issue, discrepancies
between Brown’s testimony and her mother’s testimony as to the length of the seizures, the limited
number of grand mal seizures, Brown’s daily activities, and Brown’s prior work history.39/ The ALJ
properly considered these factors in the record. The ALJ’s conclusion that together this evidence
undermined Brown’s credibility was both reasonable and supported by substantial evidence in the
record.
IV.Conclusion
For these reasons, the Court ADOPTS the Magistrate Judge’s Report and Recommendation
and AFFIRMS the ALJ’s denial of SSI benefits.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: November 18, 2015
38/
Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
Doc. 11 at 56–59.
39/
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