Witte v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Racheal Witte: that ALJ be AFFIRMED and this case CLOSED. Objections to R&R due by 7/31/2009. Signed by Magistrate Judge Timothy S. Black on 7/13/09. (jl1, )

U N I T E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF OHIO W E S T E R N DIVISION R A C H E A L WITTE, P l a in tif f , vs. C O M M IS S IO N E R OF S O C IA L SECURITY, D e f e n d a n t. : : : : : : : : : : Case No. 1:08-cv-447 Judge Herman J. Weber Magistrate Judge Timothy S. Black

R E P O R T AND RECOMMENDATION 1 THAT: (1) THE ALJ'S NOND IS A B I L IT Y FINDING BE FOUND SUPPORTED BY SUBSTANTIAL E V I D E N C E , AND AFFIRMED; AND (2) THIS CASE BE CLOSED. T h is is a Social Security disability benefits appeal. At issue is whether the ad m inistrat iv e law judge ("ALJ") erred in finding Plaintiff "not disabled," and, therefore, u n en title d to a period of disability and disability income benefits. (See Administrative T ran script ("Tr.") at 32). I . FACTS AND PROCEDURAL HISTORY A t issue in this appeal is whether depression suffered by Plaintiff, Racheal Witte, is disabling. Plaintiff allegedly began suffering from depression and anxiety as early as Ju ly 2002. (Tr., 27). On October 26, 2004, Plaintiff filed an application for disability in su ra n c e benefits alleging a disability onset date of August 1, 2002, due to manic d ep ression , anxiety and asthma. (Tr., 60-62).

Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

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O n March 9, 2005, Plaintiff's claims were denied on the state agency level. (Tr., 3 7 -3 9 ). On June 1, 2005, Plaintiff was again found not disabled on reconsideration. (Tr., 4 3 -4 5 ). Thereafter, Plaintiff requested a hearing de novo before an ALJ. (Tr., 46). A h e a rin g was held on March 1, 2007, at which Plaintiff appeared with counsel and te stif ie d . (Tr., 339-363). At the hearing, Plaintiff also presented the testimony of her f rie n d , Laurie Baker, and her live-in boyfriend, James Neeley, in an effort to show the s e v e rity of her alleged conditions. (Tr., 364-379). Among the evidence considered by the ALJ in determining Plaintiff's case was a " M e d ic a l Assessment of Ability To Do Work-Related Activities (Mental)" prepared by P lain tiff 's treating physician, Dr. Rajesh Khanna. (Tr., 283-285). According to Dr. K h a n n a ' s assessment, Plaintiff has "[n]o useful ability to" deal with work related stresses, u s e judgment, function independently, understand, remember and carry out detailed in s tru c tio n s or relate predictably in social situations. (Tr. 283-285). Dr. Khanna, h o w e v e r, failed to "[i]dentify the particular medical or clinical findings" supporting his a ss e ss m e n t of Plaintiff's work-related limitations, despite specific instructions to list such fin d ing s. (Tr., 283-285). A lso presented for the ALJ's consideration was a "Disability Assessment Report" au tho red by James J. Rosenthal, Psy.D., a clinical psychologist. (Tr., 261-264). Dr. R o s e n th a l met with Plaintiff once for a clinical interview on February 2, 2005. (Tr., 261). Following his clinical interview with Plaintiff, Dr. Rosenthal diagnosed Plaintiff with

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" M A J O R DEPRESSION (Recurrent; Mild)" and set forth the following conclusions: M s . Witte's ability to understand, remember, and follow s im p le one or two step job instructions is not impaired. Her a b ility to relate to bossess, coworkers, and the general public d o e s not appear impaired. She was pleasant and cordial d u rin g the interview. She reports no history of social p ro b lem s. Her ability to sustain attention and concentration to c o m p l e te daily work tasks appears mildly impaired based on h e r performance during the interview. Her ability to tolerate th e stress of day-to-day employment may be mildly impaired d u e to her depression. Ms. Witte could manage funds granted to her. (T r., 264). A vocational expert, Micha Daoud ("VE"), was also present at the March 1, 2007 h ea rin g and testified. (Tr., 379-386). The VE testified that, based on Dr. Rosenthal's a s s e ss m e n t of Plaintiff's work-related abilities, Plaintiff was able to perform two past jo b s , i.e., kitchen helper and order filler, and was able to perform a number of other jobs. (Tr., 381-382). However, according to the VE, if Dr. Khanna's assessment of Plaintiff's a b ility to perform work-related activities was credible, Plaintiff would be unable to p e rf o rm any of the work referenced during the hearing because "[t]here would be no job that would have absolutely no stress." (Tr. 383-384). O n April 23, 2007, the ALJ entered his decision finding Plaintiff not disabled. (Tr., 20-32). The ALJ's decision is based on the acceptance of Dr. Rosenthal's co n clus ion s regarding Plaintiff's work-related abilities and the rejection of Dr. Khanna's c o n c lu s io n s in that regard. (Tr., 31). The ALJ's decision became Defendant's final

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d eterm inatio n upon denial of review by the Appeals Council on May 5, 2008. (Tr., 4-6). T h e ALJ's specific "Findings," which represent the rationale of the decision, are as f o l lo w s : 1. T h e claimant meets the insured status requirements of the Social S e c u rity Act through December 31, 2005. T h e claimant has not engaged in substantial gainful activity since A u g u s t 1, 2002, the alleged onset date (20 CFR 404.1520(b) and 4 0 4 .1 5 7 1 et seq.). T h e claimant has the following severe combination of impairments: d e p re s s io n and asthma (20 CFR 404.1520(c)). T h e claimant does not have an impairment or combination of im p a irm e n ts that meets or medically equals one of the listed im p a irm e n ts in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 4 0 4 .1 5 2 0 (d ), 404.1525 and 404.1526). A f te r careful consideration of the entire record, the undersigned f in d s that the claimant has the residual functional capacity to work in a clean air environment with no concentrated exposure to dust, fu m es, gases, strong odors, or poor ventilation. The claimant's work s h o u ld involve only routine, repetitive tasks and understanding and c a rryin g out only simple instructions. She should have only o c c as io n a l contact with coworkers and should work in a stable, p re d ic ta b le work environment with few day to day changes. She sh o u ld not be required to travel from the place of employment. T h e claimant is capable of performing past relevant work as a k itc h e n helper and order filler. This work does not require the p erf o rm an ce of work-related activities precluded by the claimant's resid u al functional capacity (20 CFR 404.1565). T h e claimant has not been under a disability, as defined in the Social S e c u rity Act, from August 1, 2002 through the date of this decision (20 CFR 416.920(f)).

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(T r., 25-32). O n appeal, Plaintiff argues that the ALJ erred: (1) in determining her residual f u n c tio n a l capacity; and (2) in failing to evaluate the credibility of lay witnesses. I I . ANALYSIS T h e Court's inquiry on appeal is to determine whether the ALJ's non-disability f in d in g is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is " su c h relevant evidence as a reasonable mind might accept as adequate to support a c o n c lu s io n ." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this re v ie w , the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 3 6 2 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that f in d in g must be affirmed, even if substantial evidence also exists in the record upon w h ic h the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained: T h e Commissioner's findings are not subject to reversal m e re ly because substantial evidence exists in the record to s u p p o rt a different conclusion. The substantial evidence sta n d a rd presupposes that there is a "zone of choice" within w h ic h the Commissioner may proceed without interference f ro m the courts. If the Commissioner's decision is supported b y substantial evidence, a reviewing court must affirm. F e lis k y v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). A . First Assignment of Error In her first assignment of error, Plaintiff argues that the ALJ erred when he

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a c ce p te d the conclusions of Dr. Rosenthal regarding Plaintiff's residual functional c a p a c ity over the conclusions of Plaintiff's treating physician, Dr. Khanna. Specifically, P la in tif f contends that Dr. Khanna's opinions are entitled to controlling weight, or at the le a s t, greater weight than the opinions of Dr. Rosenthal. Defendant contends that the ALJ p ro p e rly discredited Dr. Khanna's conclusions as unsupported by clinical evidence, in c o n s is te n t with treatment notes, and outside Dr. Khanna's specialty. As a general rule in social security disability cases, opinions of treating doctors are g iv e n greater deference than opinions rendered by non-treating doctors. Rogers v. C o m m 'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). This rule is "commonly known a s the treating physician rule." Id. (citing Soc. Sec. Rul. 96-2p, 1996 WL 374188 (July 2, 1 9 9 6 ); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004)). The rationale b e h in d the treating physician rule is that, "treating physicians are `the medical p r o f e s s io n a ls most able to provide a detailed, longitudinal picture of [a claimant's] m e d ic a l impairment(s) and may bring a unique perspective to the medical evidence that c a n n o t be obtained from the objective medical findings alone[.]'" Rogers, 486 F.3d at 2 4 2 (citing 20 C.F.R. § 416.927(d)(2)). In determining the matter, an ALJ must specifically set forth "good reasons" for d is c o u n tin g the treating physician's conclusions. Rogers, 486 F.3d at 242. Such reasons m u s t be "sufficiently specific to make clear to any subsequent reviewers the weight the a d ju d ic a to r gave to the treating source's medical opinion and the reasons for that weight."

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Id . (citing Soc. Sec. Rul. 96-2p, at *4). An ALJ's failure to explain "precisely how those re a so n s affected the weight accorded the opinions denotes a lack of substantial evidence, e v e n where the conclusion of the ALJ may be justified based upon the record." Rogers, 4 8 6 F.3d at 243 (citing Snell v. Apfel, 177 F.3d 128, 134 (2nd Cir. 1999)). 1. C o n tr o llin g Weight of Treating Physician Opinion Evidence

In weighing differing medical opinion evidence, an ALJ considers the factors set f o rth in 20 C.F.R. § 404.1527(d)(2). Under that regulation, "the opinion of a treating p h ys ic ia n is entitled to controlling weight if such opinion (1) `is well-supported by m e d ic a lly acceptable clinical and laboratory diagnostic techniques,' and (2) `is not in c o n sis te n t with the other substantial evidence in [the] case record.'" Meece v. Barnhart, 1 9 2 Fed.Appx. 456, 460 (citing 20 C.F.R. § 404.1527(d)(2)). H e re , the ALJ determined that the opinions of Dr. Khanna were not entitled to c o n tro llin g weight because Dr. Khanna's opinions: (1) are not consistent with office n o tes; and (2) have "no clinical support." (Tr., 31). W ith regard to inconsistencies, the ALJ provided only one example of in c o n s is te n c y between Dr. Khanna's notes and ultimate opinion. Specifically, the ALJ to o k issue with Dr. Khanna's opinion that Plaintiff's concentration was "seriously lim ite d ," despite routine office notations describing Plaintiff's concentration as normal. (Tr., 31). C e rta in ly, the record shows that Dr. Khanna described Plaintiff's concentration as

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n o rm a l on September 2, 2004, December 13, 2004, and January 10, 2005. (Tr., 141, 151, 1 5 4 ). Plaintiff, in her reply to Defendant's motion in opposition, acknowledges that " th e re are five instances when Dr. Khanna notes normal concentration during the o b jectiv e exam of Plaintiff." As a result, substantial evidence supports the ALJ's c o n c lu s io n that Dr. Khanna's office notations are inconsistent with his opinion regarding P la in tif f 's concentration. H o w e v e r, as noted by the VE during the hearing, the significant disabling c h a ra c te ris tic in Dr. Khanna's report was Plaintiff's ability to tolerate stress. (Tr., 3833 8 4 ). According to the VE, if Dr. Khanna's opinion was credible, Plaintiff would be u n a b le to perform any of the work he described during the hearing because "[t]here would b e no job that would have absolutely no stress." (Tr., 383-384). The VE also noted Dr. K h an n a's conclusions that Plaintiff had "no useful - - functional ability to be able to work ind ep en d en tly or use judgment." (Tr., 383-384). D e sp ite such testimony, the ALJ never specifically cited any inconsistency b e tw e e n Dr. Khanna's office notations and his material opinions about Plaintiff's ability to tolerate stress, work independently or use judgment. Accordingly, a lack of sufficient e v id e n c e supports the ALJ's conclusion that Dr. Khanna's notes are inconsistent with his m a te ria l conclusions. H o w ev er, the inquiry does not stop there because the ALJ also determined that Dr. K h a n n a 's opinions were not entitled to controlling weight because they were not

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su p p o rte d by clinical evidence. (Tr., 31). As noted above, the ultimate difference in c o n c lu s io n s between Dr. Khanna and Dr. Rosenthal, both of whom diagnosed Plaintiff w ith depression, was the severity of her depression and its effect on her ability to handle w o rk-relate d stress. Dr. Khanna concluded that Plaintiff had no ability to deal with work re late d stresses (Tr., 283-284), whereas Dr. Rosenthal opined that Plaintiff's ability to h an d le the day-to-day stresses of employment was only "mildly impaired." (Tr., 264). P la in tif f points to a number of medical records wherein she described symptoms of an x iety and depression to Dr. Khanna. While these symptoms may support Dr. Khanna's d ia g n o sis of depression, it cannot be said which symptoms, if any, Dr. Khanna relied u p o n in forming his conclusion regarding Plaintiff's work-related abilities. To further e x a ce rb a te the issue, Dr. Khanna's failed to specifically identify any "medical/clinical f in d in g s" supporting his assessment of Plaintiff's work-related limitations, despite sp ec ific instructions to do so on the assessment form. (Tr., 283-285). T h e Sixth Circuit has repeatedly stated that an "ALJ `is not bound by conclusory s ta te m e n ts of doctors, particularly where they are unsupported by detailed objective c rite ria and documentation.'" Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (q u o tin g King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984)). Because there is an absence o f detailed objective criteria or clinical findings set forth by Dr. Khanna in support of his c o n c lu s io n s regarding the extent of Plaintiff's work-related limitations, substantial e v id e n c e supports the ALJ's conclusion that Dr. Khanna's conclusions are not entitled to c o n tro llin g weight. -9-

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W e ig h t of Medical Opinion Evidence if not Controlling

If the opinion of a treating doctor is not entitled to controlling weight under 20 C .F .R . § 404.1527(d)(2), an ALJ will then "apply the factors listed in paragraphs (d)(2)(i) a n d (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of th is section in determining the weight to give the opinion." 20 C.F.R. § 404.1527(d)(2). These factors include: "(1) the length of the treatment relationship and the frequency of th e examination; (2) the nature and extent of the treatment relationship; (3) the s u p p o rta b ility of the opinion, with respect to relevant evidence such as medical signs and la b o ra to ry findings; (4) the consistency of the opinion with the record as a whole; (5) the s p e c ia liz a tio n of the physician rendering the opinion; and (6) any other factor raised by th e applicant." Meece, 192 Fed.Appx. at 461 (citing 20 C.F.R. §§404.1527(d)(2)-(d)(6)). Here, the ALJ's decision is very detailed regarding Plaintiff's treatment with Dr. K h a n n a , the frequency, or infrequency, with which she saw him, and the nature and ex tent of Plaintiff's treatment. (Tr., 27-28, 30-31). As set forth above, the ALJ's d e c isio n also considered the consistency and supportability of Dr. Khanna's opinion in relatio n to the record as a whole. (Tr., 27-28, 30-31). O f significant importance to the ALJ in assessing the relative weight of the m e d ic a l opinion evidence was the fact that Dr. Khanna is not a psychologist. (Tr., 31). This Court has noted that "[a] treating physician's opinion on the mental state of his p a tien t constitutes competent medical evidence even though the physician is not a c e rtif ie d psychiatrist." Mason v. Comm'r of Soc. Sec., 129 Soc.Sec.Rep.Serv. 738, *14 -10-

f n 5 (S.D. Ohio Apr. 14, 2008) (citing Kruetzman v. Apfel, Case No. C-3-98- 121 (S .D .O h io Sept. 13, 1999); Lester v. Chater, 81 F.3d 821, 833 (9th Cir.1995); Sprague v. B o w e n , 812 F.2d 1226, 1232 (9th Cir. 1987); Kratochvil v. Barnhart, 2003 W.L. 2 2 1 7 6 0 8 4 (D.Kan. Sept. 17, 2003); 20 C.F.R. § 416.927(d)(2)). However, an ALJ is g e n e ra lly instructed to give more weight "to the opinion of a specialist about medical iss u e s related to his or her area of specialty than to the opinion of a source who is not a sp e c ialist." 20 C.F.R. § 404.1527(d)(5); Stiltner v. Comm'r of Soc. Sec., 244 Fed. Appx. 6 8 5 , 690 (6th Cir. 2007). A s a result, Dr. Khanna's opinion can be accorded less weight simply because he is not a psychiatrist, and particularly where the assessment of Plaintiff's mental health f a lls within the specialty of Dr. Rosenthal. Because the ALJ specified a "good reason" to d isco u n t Dr. Khanna's opinions, there is substantial evidence supporting the ALJ's c o n c lu s io n about Plaintiff's residual functional capacity. A c c o rd in g ly, the ALJ properly weighed the medical evidence and gave sufficient justifica tio n for according little weight to Dr. Khanna's opinions regarding Plaintiff's w o rk -re la te d abilities. Therefore, Plaintiff's first assignment of error should be overruled. B . Second Assignment of Error In her second assignment of error, Plaintiff contends that the ALJ erred by failing to determine the credibility of lay witnesses. At the hearing, Plaintiff proffered the lay te stim o n y of her friend, Laurie Baker, and her live-in boyfriend, James Neeley, in an ef fo rt to show the severity of her condition. (Tr., 364-379). -11-

P u r s u a n t to 20 C.F.R. Section 404.1513(d)(4), a claimant is entitled to present e v id e n c e from "[o]ther non-medical sources (for example, spouses, parents and other c a re g iv e rs , siblings, other relatives, friends, neighbors, and clergy)" in an effort "to show th e severity of your impairment(s) and how it affects your ability to work." This court has d e te rm in e d that, "[w]ith regard to witness testimony, the ALJ must consider the testimony o f friends and family members." Durham v. Comm'r of Soc. Sec.,133 Soc.Sec.Rep.Serv. 4 3 6 (6th Cir. Aug. 14, 2008) (citing Smolen v. Chater, 80 F.3d 1273, 1288 (9th C i r.1 9 9 6 ) ) . T h e re f o re , "[l]ay testimony as to a claimant's symptoms is competent evidence w h ic h the Secretary must take into account, Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1 9 9 3 ) , unless he expressly determines to disregard such testimony, in which case `he must g iv e reasons that are germane to each witness.'" Nguyen v. Chater, 100 F.3d 1462, 1467 ( 9 th Cir. 1996). An ALJ's failure to expressly set forth reasons discounting lay witness te s tim o n y is erroneous. Id. W ith regard to Baker's testimony, the ALJ notes that "the record does not support" h e r testimony that "she helped the claimant with her activities of daily living." (Tr., 30). The ALJ points to Plaintiff's statements to Dr. Rosenthal, wherein: S h e said she could do housekeeping, laundry, and cooking. She could manage money, drive, go shopping, and manage h e r hygiene daily. She said she went to her doctor a p p o in tm e n ts as scheduled, and she took her medication with h e r boyfriend's help. The claimant also said she cared for her c h ild re n during the day, helping her son with breathing -12-

tre a tm e n ts and making lunch and dinner. Dr. Rosenthal noted th e claimant was very neatly groomed. The claimant's friend, w h o testified at the hearing, also confirmed the claimant is a b le to keep her house neat and clean. (T r., 29-30). The above is sufficient grounds upon which the ALJ could discount Baker's t e s t i m o n y. P la in tif f further contends that the ALJ failed to mention Neeley's testimony in the d e c is io n . However, Plaintiff's assertion in this regard is without merit. In fact, the ALJ s p e c if ic a lly referenced Neeley's testimony (Tr., 29) and compared his testimony against P la in tif f 's statements to Dr. Rosenthal regarding her daily activities. In so comparing N e e le y's testimony to Plaintiff's description of her daily activities, the ALJ concluded th a t Plaintiff's "depression causes no more than moderate limitation in her social f u n c tio n in g ." (Tr., 29). Thus, the ALJ sufficiently assessed Neeley's testimony. A c c o rd in g ly, because the ALJ properly considered and assessed the testimony of B a k e r and Neeley, Plaintiff's second assignment of error should be overruled.

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I I I . CONCLUSION F o r the foregoing reasons, Plaintiff's assignments of error are without merit. The A L J 's decision is supported by substantial evidence and should be affirmed. IT IS T H E R E F O R E RECOMMENDED THAT: (1) because the decision of the C o m m is s io n e r is SUPPORTED BY SUBSTANTIAL EVIDENCE, it should be A F F I R M E D ; and (2) as no further matters remain pending for the Court's review, this c a se should be CLOSED.

D a te : J u ly 13, 2009

s/ Timothy S. Black Timothy S. Black U n ite d States Magistrate Judge

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UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF OHIO W E S T E R N DIVISION R A C H E A L WITTE, P l a in tif f , vs. C O M M IS S IO N E R OF S O C IA L SECURITY, D e f e n d a n t. N O T IC E P u r s u a n t to Fed. R. Civ. P. 72(b), any party may serve and file specific, written o b je c tio n s to the proposed findings and recommendations within TEN (10) DAYS after b eing served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(e), th is period is automatically extended to THIRTEEN (13) DAYS (excluding intervening S a tu rd a ys , Sundays, and legal holidays) when this Report is being served by mail and may b e extended further by the Court on timely motion for an extension. Such objections shall s p e c if y the portions of the Report objected to and shall be accompanied by a m em o ran d u m of law in support of the objections. A party may respond to another party's o b je c tio n s within TEN (10) DAYS after being served with a copy thereof. Failure to m a k e objections in accordance with this procedure may forfeit rights on appeal. See U n ite d States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (19 8 5 ). : : : : : : : : : : Case No. 1:08-cv-447 Judge Herman J. Weber Magistrate Judge Timothy S. Black