Walker v. Commissioner of Social Security
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.
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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.
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
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
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).
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)).
(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
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
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
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).
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
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.
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.
(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).
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
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
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