Ziggas v. Commissioner of Social Security
Filing
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ORDER adopting Report and Recommendation 16 ; overruling plaintiff's objections; affirming the decision of the ALJ. Signed by Judge Sandra S Beckwith on 5/6/14. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Keli Shay Ziggas,
Plaintiff,
vs.
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.
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) Case No. 1:13-CV-87
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ORDER
This matter is before the Court on Magistrate Judge Bowman’s Report and
Recommendation of March 12, 2014 (Doc. No. 16) and Plaintiff Keli Shay Ziggas’s
objections to the Report and Recommendation. Doc. No. 27. In her Report and
Recommendation, Judge Bowman concluded that the Administrative Law Judge’s
(“ALJ”) determination that Plaintiff is not disabled under the Social Security regulations
because she has the residual functional capacity (“RFC”) to perform a limited range of
jobs at the light level of exertion was supported by substantial evidence. Judge
Bowman, therefore, recommended that the ALJ’s decision be affirmed and this case be
closed on the docket of the Court. As is particularly relevant here, Plaintiff contends
that the ALJ erred by rejecting disabling physical and mental health RFC opinions
submitted by, respectively, her treating physician and her treating mental health
therapist, who is a licensed social worker. In her report, however, Judge Bowman
concluded that the ALJ’s decision not to give controlling or even significant weight to
these disabling opinions was supported by substantial evidence. Finding no error in
Judge Bowman’s analysis of the ALJ’s decision, Plaintiff’s objections to the Report and
Recommendation are not well-taken and are OVERRULED. The Court ADOPTS the
Report and Recommendation. The decision of the ALJ is AFFIRMED.
I. Background
Plaintiff Keli Shay Ziggas filed a claim for disability insurance benefits based on
both physical and mental impairments. The Social Security Administration denied her
claim initially and upon reconsideration. Plaintiff requested and received an evidentiary
hearing before an ALJ, which took place in April 2011. In July 2011, the ALJ issued a
written decision finding that Plaintiff is not disabled under the Social Security
regulations.
Proceeding through the five-step sequence for analyzing disability claims, the
ALJ determined that Plaintiff has not engaged in any substantial gainful activity since
June 2007. The ALJ next found that Plaintiff has severe impairments of lumbar and
cervical spine degenerative disc disease, diabetes mellitus, irritable bowel syndrome,
fibromyalgia, headaches, chronic obstructive pulmonary disease (COPD), major
depressive disorder, and generalized anxiety disorder, but that none of these
impairments, individually or in combination, meets a listed impairment which would
direct a finding of disability.
The ALJ then determined that Plaintiff has the physical RFC to perform light work
with some additional limitations, specifically, that she can never climb ropes, ladders or
scaffolds, she can never crawl, she can occasionally climb ramps or stairs, balance,
stoop, kneel or crouch, she can reach overhead occasionally, and she can perform
bilateral manipulation involving gross manipulation and fine manipulation on a frequent
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basis. The ALJ determined that Plaintiff has the mental RFC to perform jobs with
routine and repetitive tasks that involve only simple work-related decisions, she can
interact with the public but cannot perform transactional work such as sales or
negotiations, and she can perform only low stress work involving only occasional
changes in the work setting. Finally, the ALJ found that Plaintiff needs a job with a
sit/stand option once every 60 minutes for approximately one minute.
The ALJ then concluded that this RFC would not permit Plaintiff to perform her
past relevant work as a lab technician. Based on the testimony of the vocational expert,
however, the ALJ found that this RFC would allow Plaintiff to perform several jobs that
exist in significant numbers in the national economy, such as bench assembler, hand
packer, and inspector. Based on her determination that Plaintiff has the RFC to perform
these jobs, the ALJ concluded that Plaintiff is not disabled under the Social Security
regulations.
In developing Plaintiff’s physical and mental RFC, the ALJ gave little weight to an
RFC opinion submitted by Plaintiff’s treating physician, Dr. Heather Owens, and little
weight to the RFC opinion submitted by Plaintiff’s mental health therapist, Susan
Ullman, a licensed social worker.
Dr. Owens completed a Physical Residual Functional Capacity Questionnaire in
March 2010 which was, in the words of the ALJ, “very limiting.” Tr. 33. According to Dr.
Owens’s report, Plaintiff has lumbar degenerative disc disease, hypothyroidism,
endometriosis, Type II diabetes, a cervical herniated disc, fibromyalgia, and asthma. Tr.
722. These conditions cause pain, fatigue and shortness of breath. Dr. Owens
indicated further that Plaintiff’s cervical and lumbar pain is exacerbated by pushing,
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pulling, standing, bending, standing, walking and prolonged sitting. Id. Dr. Owens
opined that Plaintiff cannot tolerate even low stress jobs and that she can sit for only 5
to 10 minutes at a time, stand for only 5 minutes at a time, and that she can only sit and
stand or walk for a total of 2 hours in an 8 hour day. Tr. 723-724. Dr. Owens indicated
that Plaintiff needs to walk for 5 minutes every 10 minutes, that she would need a job
where she can shift positions at will, and that she would need unscheduled 10 to 15
minute breaks every 15 to 30 minutes. Tr. 724-25. Dr. Owens indicated essentially that
Plaintiff can never lift and carry any amount of weight, that she can never look up or
rarely turn her head left or right, and that she can never hold her head in a static
position. Additionally, Dr. Owens stated that Plaintiff can never twist, stoop, crouch, or
climb ladders and stairs, that she can never do grasping, reaching and fine
manipulation, and that she would miss more than four days of work per month. Tr. 725726. The vocational expert testified that Dr. Owens’s RFC would preclude Plaintiff from
performing any work. Tr. 82-83.
The ALJ, however, gave little weight to Dr. Owens’s opinion on the grounds that
“it is not found to be consistent with the overall medical evidence of record, including her
own treatment notes” and because “it appears to be based largely on the claimant’s
subjective report of her symptoms and limitations.” Tr. 34. Instead, the ALJ gave
significant weight to the opinions of the state agency physicians in determining that
Plaintiff has the physical RFC to perform a limited range of light work. Id.
Plaintiff’s mental health therapist, Susan Ullman, a licensed social worker who
was treating Plaintiff for depression, gave an extremely limiting mental RFC opinion.
Ms. Ullman indicated that Plaintiff is seriously limited in her abilities to remember work4
like procedures, understand, remember and carry out very short and simple instructions,
and respond appropriately to changes in a routine work setting. Tr. 1010. Ms. Ullman
stated that Plaintiff is limited but can satisfactorily ask simple questions or ask for
assistance and interact appropriately with co-workers. Id. Otherwise, according to Ms.
Ullman, Plaintiff cannot meet competitive standards or has no useful ability to function in
the ten remaining categories, including maintaining attention for two hours at time,
maintaining a regular work schedule, working at a consistent pace, and dealing with
normal work stress. Id. The ALJ, however, gave Ms. Ullman’s opinion little weight on
the grounds that it was based on Plaintiff’s subjective reports of her limitations rather
than on objective evidence. Tr. 35. The ALJ’s decision also indicates that Ms. Ullman’s
opinion is contrary to other medical evidence in the record. For instance, the ALJ noted
that Ms. Ullman’s opinion that Plaintiff cannot be exposed to a large number of people is
inconsistent with the opinion of Dr. Chiappone, a state agency examining psychologist,
who concluded that she would have little difficulty relating to others in a work setting,
including the general public. Tr. 35.
Instead, in arriving at Plaintiff’s mental RFC, the ALJ “generally accepted” the
opinions of the state agency psychologists except that she concluded that Plaintiff is
moderately limited in social functioning and moderately limited in concentration,
persistence and pace, and she could have only limited contact with the public for
transactional work. Tr. 35. In contrast, for instance, Dr. Chiappone indicated that
Plaintiff is only mildly impaired in her ability to interact with co-workers, supervisors, and
the general public. Tr. 635.
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As stated above, the ALJ determined that Plaintiff is not disabled under the
Social Security regulations because the RFC she adopted indicates that Plaintiff can
perform several jobs that exist in significant numbers in the national economy. After the
Commissioner denied Plaintiff’s request for review of the ALJ’s decision, Plaintiff filed a
timely complaint for judicial review of that decision.
In two assignments of error, Plaintiff contends that the ALJ failed to give good
reasons for giving less than significant weight to the opinions of Dr. Owens and Ms.
Ullman. Plaintiff argues further that the ALJ violated the Sixth Circuit’s opinion in
Gayheart v. Commissioner of Social Sec., 710 F.3d 365 (6th Cir. 2013), by applying
more stringent standards in evaluating the opinions of treating physicians than she did
in evaluating the opinions of reviewing and examining physicians. Relatedly, Plaintiff
argues that the ALJ erred by failing to state how much weight she gave to Dr.
Chiappone’s opinion. Dr. Chiappone’s opinion is disabling, she claims, because he
found Plaintiff moderately limited in her ability to carry out simple work instructions.
Moreover, Plaintiff argues, Dr. Chiappone’s opinion actually supports Ms. Ullman’s
essentially disabling opinion. Finally, Plaintiff argues that the ALJ erred in evaluating
her credibility because her activities of daily living are not indicative of an ability to
perform work on a full-time competitive basis.
Magistrate Judge Bowman’s report found that both the weight the ALJ gave to
the medical opinions and the ALJ’s credibility determinations were supported by
substantial evidence. Supporting the weight, or lack thereof, the ALJ gave to Dr.
Owens’s opinion, Judge Bowman noted the contrary opinions of the state agency
physicians, reports that Plaintiff’s diabetes is stable, normal chest and head CT scans,
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MRI’s showing no nerve root compression or cervical radiculopathy, normal neurological
and musculoskeletal examinations, and an absence of complaints from Plaintiff in
treatment notes concerning fibromyalgia. Judge Bowman also determined that the ALJ
did not violate Gayheart because she based her decision to give little weight to Dr.
Owens’s opinion on more than the contrary opinions of the state agency physicians.
Judge Bowman next determined that Ms. Ullman is not a treating source under
the Social Security regulations and that, therefore, the ALJ did not have to give her
opinion any deference, although she did have to consider it. Judge Bowman found that
the ALJ’s decision to give little weight to Ms. Ullman’s opinion was supported by
substantial evidence, pointing out for instance, inconsistencies between the finding that
Plaintiff has an extremely impaired memory and the absence of complaints or findings
of an impaired memory in Plaintiff’s initial assessment. Finally, Judge Bowman found
that the ALJ’s credibility determination was supported by substantial evidence. In
rejecting Plaintiff’s complaints of disabling pain, Judge Bowman pointed out the ALJ’s
reliance on Plaintiff’s normal physical examinations on at least several occasions and
her findings that Plaintiff’s activities are only mildly impaired. Accordingly, Judge
Bowman recommended affirming the ALJ’s decision.
Plaintiff filed timely objections to Judge Bowman’s report which are ready for
disposition.
II. Standard of Review
The relevant statute provides the standard of review to be applied by this
Court in reviewing decisions by the ALJ. See 42 U.S.C. § 405(g). The Court is to
determine only whether the record as a whole contains substantial evidence to support
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the ALJ’s decision. “Substantial evidence means more than a mere scintilla of
evidence, such evidence as a reasonable mind might accept as adequate to support a
conclusion.” LeMaster v. Secretary of Health & Human Serv., 802 F.2d 839, 840 (6th
Cir. 1986) (internal citation omitted). The evidence must do more than create a
suspicion of the existence of the fact to be established. Id. Rather, the evidence must
be enough to withstand, if it were a trial to a jury, a motion for a directed verdict when
the conclusion sought to be drawn from it is one of fact for the jury. Id. If the ALJ’s
decision is supported by substantial evidence, the Court must affirm that decision even
if it would have arrived at a different conclusion based on the same evidence. Elkins v.
Secretary of Health & Human Serv., 658 F.2d 437, 439 (6th Cir. 1981). The district
court reviews de novo a magistrate judge’s report and recommendation regarding social
security benefits claims. Ivy v. Secretary of Health & Human Serv., 976 F.2d 288, 28990 (6th Cir. 1992).
III. Analysis
A. Treating Physician Rule
Plaintiff’s argument that the ALJ erred in the weight she gave to Dr. Owens’s
opinion implicates the treating physician rule.
Under the “treating physician rule,” the opinion of a claimant’s treating physician
is accorded controlling weight if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence
in [the] case record[.]” Rogers v. Commissioner of Social Sec., 486 F.3d 234, 242 (6th
Cir. 2007). If the treating physician’s opinion is not controlling, the ALJ, in determining
how much weight is appropriate, must consider a host of factors, including the length,
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frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors. Id. There is a rebuttable presumption that the opinion of a
treating physician is entitled to great deference, its non-controlling status
notwithstanding. Id. (citing Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *4 (“In many
cases, a treating physician’s medical opinion will be entitled to the greatest weight and
should be adopted, even if it does not meet the test for controlling weight.”)).
Additionally, the ALJ must provide “good reasons” for discounting a treating physician’s
opinion, reasons that are “sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight. Id.
Gayheart, cited by Plaintiff, held that the ALJ cannot base her decision to reject
the opinion of a treating physician solely on the opinions of non-treating or nonexamining doctors, otherwise “the treating source’s opinion would have controlling
weight only when the other sources agreed with that opinion.” 710 F.3d at 377.
Gayheart also cautioned that the ALJ cannot scrutinize the opinions of treating sources
more rigorously than the opinions of consultative physicians - no double standards
allowed. Id. at 379-80.
With the above standards in mind, the Court concurs with Judge Bowman’s
assessment that the ALJ’s decision to give little weight to Dr. Owens’s extreme
disabling opinion was supported by substantial evidence.
First, as the ALJ noted, Dr. Owens’s opinion was inconsistent with much of the
medical evidence, including her own treatment notes as well as the treatment notes of
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other doctors in her practice group. An ALJ is entitled to reject the opinion of a treating
physician when it is inconsistent with his or her treatment notes. E.g., Gant v.
Commissioner of Social Sec., 372 Fed. Appx. 582, 584 (6th Cir. 2010). For instance,
despite indicating that Plaintiff is extremely limited in her ability to sit, stand and walk,
except on a few occasions (e.g., Tr. 769), Dr. Owens’s treatment notes, and those of
her practice partner, Dr. Patterson, consistently document that Plaintiff has a full range
of motion in her back, normal deep tendon reflexes, and normal gait, stance and
balance. Tr. 481, 475, 469, 468, 460, 453, 450, 449, 699, 693, 689, 779, 777, 775, 773,
771. Indeed, only about two weeks after issuing her disabling RFC opinion, Dr.
Owens’s treatment notes again indicated essentially normal findings on physical
examination. Tr. 777, 779. Additionally, as the ALJ observed, Dr. Owens’s sitting
limitations are inconsistent with Plaintiff’s evident ability to sit through 60 to 75 minute
counseling sessions without any documented discomfort.
Second, the ALJ’s determination that Dr. Owens’s opinion was inconsistent with
the overall medical record was supported by substantial evidence. The ALJ noted
normal physical examination findings on numerous occasions, consistent observations
that Plaintiff appeared in no acute distress and had normal strength, muscle tone, and
gait, absence of current complaints concerning fibromyalgia symptoms, and an MRI
showing only mild to moderate degenerative disc disease and degenerative facet
changes. Tr. 796-797.
Third, the ALJ did not run afoul of Gayheart in rejecting Dr. Owens’s opinion
because she relied on more than just the opinions of the state agency physicians to
support that decision. As just summarized, the ALJ reasonably observed that Dr.
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Owens’s opinion was not supported by much of the medical record, including her own
treatment notes. There was, therefore, a substantial basis for the ALJ’s decision not to
give controlling weight to Dr. Owens’s opinion.
Next, and relatedly, Plaintiff is incorrect that the ALJ erred by not stating how
much weight she gave to the opinion of Dr. Chiappone, the state agency psychologist.
Plaintiff is further incorrect that Dr. Chiappone’s opinion that Plaintiff is moderately
impaired in the ability to carry out simple instructions precludes her ability to work. As to
the first argument, the ALJ specifically stated that “the opinions of the state agency
reviewing psychologists are generally accepted,” Tr. 35, a statement which indicates
that the ALJ gave Dr. Chiappone’s opinion significant weight. Moreover, is not clear
that Dr. Chiappone actually stated that Plaintiff is moderately impaired in her ability to
carry out simple instructions. Dr. Chiappone stated that Plaintiff is not impaired in her
ability to remember simple instructions, that she is moderately impaired in remembering
simple instructions, and moderately impaired “in her ability to carry out and persist over
time due to depression and anxiety.” Tr. 635.
Plaintiff notably does not provide any authority to support her contention that a
moderate limitation in carrying out simple instructions precludes the claimant’s ability to
work. In any event, courts generally agree that although the Social Security regulations
do not define a “moderate limitation” it is commonly defined on agency forms “as
meaning that the individual is still able to function satisfactorily.” Lacroix v. Barnhart,
465 F.3d 881, 888 (8th Cir. 2006). Additionally, the record is clear that during the
evidentiary hearing the vocational expert did not agree that a moderate limitation in
carrying out simple instructions would preclude the Plaintiff’s ability to maintain
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competitive employment. Rather, the vocational expert agreed with Plaintiff’s counsel
that if a moderate limitation means that the claimant is unable to carry out simple
instructions 30% of the time, then competitive employment would be precluded. But,
the vocational expert did not agree that Plaintiff’s definition is the one that applies to
“moderate limitation.” Tr. 87-88.
Finally, the state agency reviewing psychologist, whose opinions the ALJ also
“generally accepted,” indicated that Plaintiff is not significantly limited in her ability to
carry out simple instructions. Tr. 653. Therefore, the ALJ’s determination that Plaintiff’s
mental impairments do not limit her ability to carry out simply instructions is supported
by substantial evidence in the record. In other words, even though the ALJ “generally
accepted” Dr. Chiappone’s opinion, his opinion does not necessarily trump the opinion
of the other state agency psychologist and mandate a finding that Plaintiff’s ability to
carry out simple instructions is impaired.
Continuing further, the ALJ did not err in the weight she gave to the opinions of
Ms. Ullman, the social worker. Social workers are not acceptable medical sources
under the applicable regulations and their opinions are not entitled to be given any
weight or deference by the ALJ. Hill v. Commissioner of Soc. Sec., __Fed. Appx.__,
No. 13-6101, 2014 WL 1257948, at *2 (6th Cir. Mar. 27, 2014). As indicated above, Ms.
Ullman issued an evaluation indicating that Plaintiff cannot meet competitive standards
or has no useful ability to function in ten areas of mental functioning. Ms. Ullman’s
opinion at a minimum, however, is contradicted by the opinions of the state agency
psychologists. Therefore, the ALJ did not err in the weight she assigned to Ms.
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Ullman’s opinion. Sanders v. Commissioner of Soc. Sec., 66 Fed. Appx. 551, 553-54
(6th Cir. 2003).
Finally, the ALJ did not err in assessing Plaintiff’s credibility. Plaintiff complains
that the activities of daily living she can perform do not support the ALJ ‘s determination
that she can work on a sustained basis. Assessing the claimant’s credibility, however,
involves more than just evaluating the claimant’s activities of daily living; it requires
consideration of the whole medical record, including “medical signs and lab findings, the
claimant’s own complaints of symptoms, any information provided by the treating
physicians and others, as well as any other relevant evidence contained in the record.”
Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (6th Cir. 2007). Moreover,
the ALJ’s credibility findings are entitled to substantial deference by the reviewing court.
Barker v. Shalala, 40 F.3d 789, 795 (6th Cir.1994).
Here, the ALJ cited more than just Plaintiff’s activities of daily living in discounting
her subjective complaints about the severity of her symptoms. In particular, the ALJ
observed that Plaintiff’s Lyme titres are normal, her CT scans were normal and there
were no current complaints of migraines, Plaintiff’s diabetes was reported as stable and
there was no evidence of neuropathy or end organ damage, Plaintiff had no nerve root
compression, and normal motor strength and reflexes and a well-coordinated gate. Tr.
32-33. The ALJ also noted the absence of current complaints about fibromyalgia and
the fact that treating doctors consistently noted that Plaintiff did not appear to be in
acute distress despite complaining of high levels of pain. Tr. 33-34. The ALJ also
observed that Plaintiff appeared to be able to tolerate sitting through hour-long
counseling sessions without discomfort or losing her concentration. Tr. 34. Finally, the
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ALJ cited findings that Plaintiff is able to interact appropriately with others and
improvement in her mental status after starting Trazadone and Zoloft. Tr. 34. These
findings all support the ALJ’s decision to discount Plaintiff’s credibility.
Conclusion
In conclusion, Plaintiff’s objections to Magistrate Judge Bowman’s Report and
Recommendation are OVERRULED for the reasons stated. The Court ADOPTS the
Report and Recommendation. The decision of the ALJ finding that Plaintiff is not
disabled under the Social Security regulations is AFFIRMED. THIS CASE IS CLOSED.
IT IS SO ORDERED
Date May 6, 2014
s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge
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