Walker v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Mary Walker: that ALJ be AFFIRMED and this case be CLOSED. Objections to R&R due by 7/31/2009. Signed by Magistrate Judge Timothy S. Black on 7/14/09. (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

M A R Y WALKER, 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-450 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 in this appeal is w h e th e r the administrative law judge ("ALJ") erred in finding Plaintiff "not disabled" an d , therefore, unentitled to a period of disability and disability income benefits. (See A d m inistrativ e Transcript ("Tr.") 25). I . FACTS AND PROCEDURAL HISTORY O n August 12, 2004, Plaintiff, Mary Walker, filed an application for disability in s u ra n c e benefits alleging a disability onset date of January 1, 2002, as a result of d e p re ss io n , anxiety and panic disorder. (Tr. 64-66). Plaintiff claims her conditions r e n d e r her disabled, entitling her to a period of disability and disability insurance benefits.

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

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P la in tif f 's claims were initially denied at the state agency level on November 22, 2 0 0 4 . (Tr. 29). On January 5, 2005, Plaintiff requested reconsideration of the initial d e n ia l of her claims. (Tr. 32). On April 8, 2005, Plaintiff's claims were again denied on re c o n sid e ra tio n . (Tr. 34). Thereafter, on May 3, 2005, Plaintiff requested a hearing de n o v o before an ALJ. (Tr. 36). A hearing was held before the ALJ on May 4, 2007, at which time Plaintiff a p p e a re d with counsel and testified. (See Tr. 358-389). To support her claims, Plaintiff su b m itte d a number of medical records from her physicians for the ALJ's review, notably rec o rds from Dr. Chetna Mital, Dr. Kenneth Tepe, Dr. Peter Boxer, and Dr. Julie Renner. In c lu d e d among the records submitted to the ALJ was a residual functional c a p ac ity ("RFC") questionnaire completed by Dr. Renner. (Tr. 285-286). Dr. Renner c o n c lu d e d that Plaintiff was seriously limited in her abilities to: maintain attention for two h o u rs; sustain an ordinary routine without special supervision; work in coordination or in p ro x im ity to others without being unduly distracted; perform at a consistent pace without u n re a so n a b ly numerous and/or lengthy breaks; carry out detailed instructions; travel in u n fa m ilar places; and use public transportation. (Tr. 285-286). D r. Renner also concluded that Plaintiff was completely unable to: complete a n o rm a l workday and/or workweek without any interruption from her condition; u n d e rs ta n d and remember detailed instructions; and to handle any work-related stress. (Tr. 285-286). Finally, Dr. Renner concluded that Plaintiff would be required to miss up

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to four days per month as a result of her impairments. (Tr. 287). A ls o presented for the ALJ's review was a report authored by David Chiappone, P h .D ., a clinical psychologist, who examined Plaintiff on October 29, 2004, at the request o f Defendant. (Tr. 245-248). Dr. Chiappone concluded that Plaintiff: c a n understand simple one and two-step job instructions. She is mildly impaired in her ability to remember such tasks . . . S h e is mildly impaired in her ability to maintain concentration an d attention . . . She can relate to co-workers, supervisors a n d the public . . . She is moderately impaired in her ability to c a rry out and persist over time due to anxiety. She has m o d e ra te ly reduced stress tolerance. She's capable of m a n a g in g her funds. GAF for symptoms would be 51, while f u n c tio n a l level is 61 as she is capable of doing basic tasks. (T r. 248). Dr. Chiappone suggested diagnoses of generalized anxiety disorder and panic d isord er with agoraphobia. (Tr. 248). A vocational expert, Dr. Stephanie Barnes, was also present and testified at the h e a rin g on May 4, 2007. (Tr. 383-387). In response to a hypothetical question setting f o rth the conclusions of Dr. Chiappone, as set forth in his report, Dr. Barnes testified that th e re were a number of jobs in the regional and national economy that Plaintiff could p erf o rm . (Tr. 383-387). O n August 28, 2007, the ALJ entered his decision finding Plaintiff not disabled. (Tr. 10-25). That decision became Defendant's final determination upon denial of review b y the Appeals Council on May 23, 2008. (Tr. 5-7). T h e ALJ's "Findings," which represent the rationale of his decision, were as

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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, 2007. T h e claimant has not engaged in substantial gainful activity since Jan u ary 1, 2002, the alleged onset date (20 CFR 404.1520(b), 4 0 4 .1 5 7 1 et seq., 416.920(b) and 416.971 et seq.). T h e claimant has the following severe combination of impairments: d e p re ss io n ; anxiety/panic disorder; and borderline intellectual f u n c tio n in g (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 4 1 6 .9 2 6 ) . A f te r careful consideration of the entire record, the undersigned fin d s that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following n o n e x e rtio n a l limitations: The claimant is able to perform only s im p le , routine, repetitive tasks. She can understand, remember, and c a rry out only short and simple instructions, and cannot work at a ra p id production-rate pace. The claimant can make only simple w o rk -re la te d decisions, and her job should not require more than o rd in a ry and routine changes in work setting or duties. The claimant c a n n o t interact with the general public and can interact with c o w o rk e rs and supervisors only occasionally. The claimant can never clim b ladders/ropes/scaffolds, work at unprotected heights, or work a ro u n d hazardous machinery. T h e claimant has no past relevant work (20 CFR 404.1565 and 4 1 6 .9 6 5 ) . T h e claimant was born on March 25, 1976 and was 25 years old, w h ic h is defined as a younger individual age 18-49, on the alleged d isab ility onset date (20 CFR 404.1563 and 416.963).

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T h e claimant has a limited education and is able to communicate in E n g lish (20 CFR 404.1564 and 416.964). T ra n sf e ra b ility of job skills is not an issue because the claimant does n o t have past relevant work (20 CFR 404.1568 and 416.968). C o n s id e rin g the claimant's age, education, work experience, and re sid u a l functional capacity, there are jobs that exist in significant n u m b e rs in the national economy that the claimant can perform (20 C F R 404.1560(c), 404.1566, 416.960(c), and 416.966). T h e claimant has not been under a disability, as defined in the Social S e c u rity Act, from January 1, 2002 through the date of this decision (2 0 CFR 404.1520(g) and 416.920(g)).

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(T r. 15-25). T h e ALJ concluded that Plaintiff was not under a disability as defined in the Social S e c u rity Act and, therefore, not entitled to a period of disability and disability insurance b en ef its. (Tr. 25). O n appeal, Plaintiff argues that the ALJ erred: (1) in determining Plaintiff's RFC; a n d (2) in finding Plaintiff non-compliant with her treatment. 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). -5-

If substantial evidence supports the ALJ's denial of benefits, that finding must be a f f irm e d , even if substantial evidence also exists in the record upon which the ALJ could h a v e found plaintiff disabled. As the Sixth Circuit has explained: T h e Secretary's findings are not subject to reversal merely b e c a u se substantial evidence exists in the record to support a d iffe ren t conclusion. The substantial evidence standard p re su p p o s e s that there is a "zone of choice" within which the C o m m is s io n e r may proceed without interference from the c o u rts . If the Commissioner's decision is supported by s u b s ta n tia l evidence, a reviewing court must affirm. F e lis k y v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (internal citations omitted). A . First Assignment of Error In her first assignment of error, Plaintiff contends that the ALJ erred in d e te rm in in g her RFC. Specifically, Plaintiff presents two arguments in this assignment of e rro r: (1) that the ALJ erred in determining that Dr. Julie Renner was not a treating p h ysic ian ; and (2) that the ALJ erred in determining that notes of Plaintiff's treatments d id not support Dr. Renner's opinion about Plaintiff's RFC. 1. T re a tin g Physician Analysis

T h e ALJ determined that Dr. Renner was not a treating psychiatrist because she " sa w claimant only three times over a 7 month period." (Tr. 23). The ALJ further noted th a t one of Plaintiff's three appointments with Dr. Renner was made simply to get a p re sc rip tio n refill, and that another "appointment was made primarily to have a disability f o rm completed." (Tr. 23). Plaintiff contends that the ALJ's determination is error

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b e c au s e Dr. Renner was a treating source, as defined by 20 C.F.R. § 404.1502. B ef o re enactment of 20 C.F.R. § 404.1502, the Sixth Circuit defined the term " tre a tin g physicians as `physicians who have seen plaintiff several times over a period of m o n th s .'" Day v. Shalala, 23 F.3d 1052, 1066 n 18 (6th Cir. 1994) (quoting Lashley v. S e c r e ta r y of HHS, 708 F.2d 1048, 1054 (6th Cir. 1983)). Social Security Regulations n o w define a treating physician as the physician who provides, or has provided, the c la im a n t "with medical treatment or evaluation and who has, or has had, an ongoing tre a tm e n t relationship with" the claimant. 20 C.F.R. § 404.1502. A claimant has "an ongoing treatment relationship with an acceptable medical s o u rc e when the medical evidence establishes that" the claimant currently sees, or p re v io u s ly saw, "the source with a frequency consistent with accepted medical practice f o r the type of treatment and/or evaluation required for [the claimant's] medical c o n d itio n (s )." Id. A doctor treating or evaluating a claimant "only a few times or only a f te r long intervals" may be considered a "treating source if the nature and frequency of th e treatment or evaluation is typical for [the claimant's] condition(s)." Id. However, a d o c to r is not a treating source if the claimant's relationship with the source was based s o le ly on claimant's "need to obtain a report in support of" claimant's disability claim. Id. P la in tif f does not contest the ALJ's conclusion that she treated with Dr. Renner o n ly three times over a seven month period. Instead, Plaintiff argues that Dr. Renner

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s h o u ld be considered a treating source because, despite only treating with Dr. Renner three times, she treated with Dr. Renner's medical practice group for over a year before D r. Renner completed an RFC assessment. P la in tif f cites no law in support of her position. In fact, one court has rejected a s im ila r proposition, noting that a doctor who had never examined the claimant cannot be c o n s id e re d a treating physician simply because the doctor practices within the same p ra c tic e group as claimant's actual treating doctor. See Rice v. Astrue, No. 07-39-P-S, 2 0 0 7 WL 3023546, *3 (D.Me. Oct. 12, 2007) (reasoning that such doctor stands "in no b e tte r position than the state-agency reviewing physicians who had available to them the p lain tiff 's `clinical file'"). W h ile the facts in Rice are not completely analogous to the facts of this case, the re a so n in g in Rice is sound and consistent with the rationale behind the "treating physician rule." Treating physician opinions are generally accorded more weight because they are " th e medical professionals most able to provide a detailed, longitudinal picture of [a c la im a n t's ] medical impairment(s) and may bring a unique perspective to the medical e v id e n c e that cannot be obtained from the objective medical findings alone[.]" Rogers v. C o m m 'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (citing 20 C.F.R. § 4 1 6 .9 2 7 (d )(2 )); see also Daniels v. Astrue, 127 Soc.Sec.Rep.Serv. 1056, *4 (E.D. Ky 2 0 0 8 ) (stating that "the treating physician doctrine is based on the assumption that a m e d ic a l professional who has dealt with the claimant and his maladies over a long period

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o f time will have a deeper insight into the medical condition of the claimant than will a p erso n who has examined a claimant only once"). Thus, in evaluating whether Dr. R e n n e r is a treating physician, only Plaintiff's direct treatment with Dr. Renner is c o n sid e re d . H e re , contrary to Rice, Dr. Renner actually examined Plaintiff, and did so more th a n once. Even so, the Sixth Circuit has noted that "depending on the circumstances and th e nature of the alleged condition, two or three visits often will not suffice for an o n g o in g treatment relationship." Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 5 0 6 -50 7 (6th Cir. 2006). A review of Dr. Renner's records reveals that Plaintiff first saw Dr. Renner on A u g u s t 11, 2006, at which time Plaintiff was continued on her medications. (Tr. 312). Plaintiff scheduled the August 11, 2006 session with Dr. Renner only after being told on A u g u s t 10, 2006, via telephone, that her prescriptions would not be written unless seen by a registered nurse or Dr. Renner for pharmacy management. (Tr. 309). Next, Dr. Renner saw Plaintiff on November 1, 2006. (Tr. 312). Dr. Renner's tre a tm e n t notes from that visit indicate that Plaintiff had a job interview scheduled that s a m e day, and that Plaintiff suspected her boyfriend was cheating on her after she was d ia g n o se d with a sexually transmitted disease. (Tr. 312). The November treatment notes m a k e no mention of Plaintiff's depression, anxiety or panic disorder other than a brief n o ta tio n that Plaintiff was doing well on her medication. (Tr. 312).

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F inally, on February 1, 2007, Plaintiff met with Dr. Renner for, as described by Dr. R e n n e r, a "lawyer's disability assessment." (Tr. 314). Dr. Renner's treatment notes from th a t visit state that Plaintiff had not been seeing her therapist, Etta Treadway. (Tr. 314). Further, the notes indicate that Plaintiff was currently dealing with a diabetic mother and g r a n d m o t h e r, and that Plaintiff failed to attend the funeral of a "dear friend . . . because s h e got the date mixed up." (Tr. 314). Dr. Renner notes that Plaintiff's stress resulting f ro m these events caused a decrease in Plaintiff's appetite, which in turn caused Plaintiff to lose weight. (Tr. 314). These treatment notes indicate fairly insignificant treatment of Plaintiff's allegedly d is a b lin g conditions by Dr. Renner before she completed the RFC questionnaire on F eb rua ry 1, 2007. As a result, it cannot be said that the ALJ erred in determining that Dr. R e n n e r was not a treating physician. Accordingly, Plaintiff's assignment of error in this re g a rd is without merit. 2. B a s is of Dr. Renner's RFC Opinions

P la in tif f also takes issue with the ALJ's conclusion that Dr. Renner's report was n o t supported by the records of Plaintiff's overall treatment. In light of Dr. Renner's f a irly insignificant treatment notes regarding Plaintiff's depression, anxiety and panic d i so r d e r , substantial evidence supports the ALJ's conclusion that her treatment notes, a lo n e , provide very little basis upon which a severe disability assessment could be based. Thus, the ALJ did not err in finding that Dr. Renner's notes failed to support her RFC

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a ss e ss m e n t. As a result, Plaintiff's assignment of error in this regard is without merit. T h e ALJ also specifically found that Dr. Renner's RFC determination was not s u p p o rte d by Dr. Boxer's treatment notes. (Tr. 23). In his treatment notes on February 9, 2 0 0 6 , Dr. Boxer stated that Plaintiff "is not reporting any significant symptoms of anxiety o r depression[,]" and that no such symptoms were evident upon his observation. (Tr. 2 9 8 ). Dr. Boxer further stated that Plaintiff was "doing very well on her current m e d ic in e s and [was] not reporting any problems on them[.]" (Tr. 299). In fact, Plaintiff c le a rly went shopping before her appointment, as evidenced by several large shopping b a g s she brought with her. (Tr. 298). All of the above led Dr. Boxer to conclude that P lain tiff 's condition was greatly improved and "essentially in remission." (Tr. 298-299). A g a in , on March 8, 2006, Dr. Boxer's treatment notes state that he personally o b s e rv e d "no symptoms of depression or anxiety" and that Plaintiff reported "doing fine" w ith no "symptoms of depression or anxiety at this time." (Tr. 302). On Plaintiff's last v is it with Dr. Boxer, on May 15, 2006, he noted "[n]o evidence of depression or anxiety" an d that Plaintiff reported she was "doing satisfactorily." (Tr. 307). T h ere fo re, as found by the ALJ, nothing in either Dr. Renner's notes or Dr. B o x e r's notes support Dr. Renner's RFC assessment. From the time Plaintiff began tre a tm e n t with Dr. Boxer in February 2006, up until the time of Dr. Renner's RFC a ss e ss m e n t in February 2007, nothing supports a conclusion that Plaintiff's mental c o n d itio n was disabling.

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E v e n before Plaintiff's treatment with Dr. Boxer and Dr. Renner, her medical re c o rd s are replete with instances showing that her condition is well-treated when taking m e d ic a tio n as prescribed. (Tr. 160, 159, 156, 154, 153, 152, 243, 278, 276, 274, 272, 2 9 8 -2 9 9 , 302, 307). Even Dr. Tepe reported that, between June 8, 2005 and July 8, 2005, P la in tif f was taking her medications and showed a clear improvement in her condition. (Tr. 272-275). As a result, substantial evidence supports the ALJ's conclusion that Dr. R e n n e r 's RFC assessment is not supported by Plaintiff's medical records. A c c o rd in g ly, Plaintiff's first assignment of error is without merit and is overruled. B . Second Assignment of Error In her second assignment of error, Plaintiff argues that the ALJ erroneously d e te rm in e d that she was non-compliant with her treatment. Specifically, the ALJ stated th a t: U n f o rtu n a te ly, the claimant has a history of noncompliance w ith mental health treatment, even though she admits that w ith treatment she does quite well. The claimant also has a h is to ry of using alcohol to excess. The claimant's nonc o m p l ia n c e and drinking are responsible for exacerbated s ym p to m s . When the claimant follows a prescribed treatment re g im e n , her symptoms are well controlled. (T r. 20). Plaintiff contends such remarks are a misstatement of the record. However, as s e t forth below, the ALJ's findings in this regard are supported by substantial evidence. O n July 22, 2002, Plaintiff reported to Dr. Mital that she stopped taking Paxil b e c a u s e she was feeling so good that she believed she did not need the drug anymore.

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(T r. 159). However, Plaintiff also reported at that time that her anxiety started to return s o o n thereafter. (Tr. 159). Again, on January 20, 2004, Plaintiff reported to Dr. Mital th a t she quit taking her medication because she was doing well, yet started having panic a tta c k s soon after stopping her medication. (Tr. 153). On November 15, 2004, Plaintiff reported to Dr. Tepe that she suffered "many p a n ic attacks in the last few weeks." (Tr. 237). However, she also reported taking some m e d ic a tio n only in the morning and not at night "because she `didn't need it at night,' and d o e sn 't like being sedated." (Tr. 237). Dr. Tepe explained to Plaintiff that she needed to ta k e her medication routinely, and further encouraged Plaintiff to comply with her tre a tm e n t. (Tr. 237). On August 15, 2005, after Plaintiff's condition had previously improved, Dr. Tepe s ta te s in his treatment notes that Plaintiff "looks and sounds more depressed." (Tr. 270). Dr. Tepe further notes that Plaintiff made "the point that she is not taking her medication c o r re c tly, and that when she was she was doing a lot better." (Tr. 270). Plaintiff also re p o rte d to Dr. Tepe during that she "can't let the Miller Lite alone" and had an incident w h ile drinking wherein Plaintiff allegedly considered walking into the path of a semitru c k . (Tr. 270). The information gathered by Dr. Tepe led him to conclude that P lain tiff 's drinking "is clearly out of control and she appears to have blackouts." (Tr. 2 7 0 ). Again, Dr. Tepe "made the point [to Plaintiff] that her medication needs to be rou tin e[ .]" (Tr. 270).

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A ll of the above provides substantial evidence supporting the ALJ's conclusion th a t Plaintiff "has a history of noncompliance with mental health treatment" and that her "n o n -co m p lian ce and drinking are responsible for exacerbated symptoms." (Tr. 20). A cc o rd in g ly, finding no error with regard to Plaintiff's second assignment of error, it is overruled. I I I . CONCLUSION F o r the foregoing reasons, Plaintiff's assignments of error are without merit and a re overruled. The ALJ's decision is supported by substantial evidence and should be a f f irm e d . IT IS THEREFORE RECOMMENDED THAT: (1) because the decision of th e Commissioner 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 14, 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 M A R Y WALKER, 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-450 Judge Herman J. Weber Magistrate Judge Timothy S. Black