Arms v. Commissioner of Social Security
Filing
12
REPORT AND RECOMMENDATION that the decision of the Commissioner be affirmed and that this action be dismissed re 2 Complaint filed by Dianna L. Arms. Objections to R&R due by 2/9/2012. Signed by Magistrate Judge Norah McCann King on 1/23/12. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DIANNA L. ARMS,
Plaintiff,
vs.
Civil Action 2:10-CV-977
Judge Sargus
Magistrate Judge King
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §§
405(g), 1383 for review of a final decision of the Commissioner of
Social Security denying plaintiff’s application for supplemental
security income.
This matter is now before the Court on Plaintiff’s
Statement of Errors, Doc. No. 9, the Commissioner’s memorandum in
opposition, Doc. No. 10, and plaintiff’s reply memorandum, Doc. No.
11.
I.
Procedural History
Plaintiff Dianna Arms filed her application for benefits on
December 6, 2004, alleging that she has been disabled since November
1, 2002.
The application was denied initially and upon
reconsideration and plaintiff requested a de novo hearing before an
administrative law judge.
On January 10, 2008, plaintiff, represented by counsel, appeared
and testified at an administrative hearing, as did Thomas Grzesik, who
testified as a vocational expert.
A.R. 423-456.
In a decision dated February 28, 2008, an administrative law
judge found that plaintiff’s severe impairments consist of arthritis
of the left knee, borderline intellectual functioning and/or mild
mental retardation.
A.R. 55.
The administrative law judge went on to
find that plaintiff’s impairments neither meet nor equal a listed
impairment and leave her with the residual functional capacity to
perform a reduced range of light work.
A.R. 55-59.
Because the
administrative law judge found that this residual functional capacity
permitted the performance of a significant number of jobs, the
administrative law judge concluded that plaintiff is not disabled
within the meaning of the Social Security Act.
A.R. 60.
The Appeals Council remanded the matter for a new hearing, and
directed that the administrative law judge obtain the services of a
medical expert. A.R. 63, 69-73.
On remand, two more administrative hearings were held: on
December 9, 2008, and on July 24, 2009.
Plaintiff, represented by
counsel, appeared and testified at each.
A.R. 385-422; 362-84.
M.
Bruce Walsh, Ph. D., also testified as a vocational expert at the July
24, 2009 hearing.
In a decision dated November 4, 2009, a different
administrative law judge found that plaintiff’s severe impairments
consist of left knee arthritis, low weight, borderline intellectual
functioning/mild mental retardation, and affective and anxiety-related
disorders.
A.R. 19-20.
The administrative law judge went on to find
that plaintiff’s impairments neither meet nor equal a listed
impairment and leave her with the residual functional capacity to
perform a reduced range of light work.
2
A.R. 20-24.
Relying on the
testimony of the vocational expert, the administrative law judge found
that plaintiff’s residual functional capacity permits her to perform
work that exists in significant numbers, including work as a cleaner
and laborer/packer.
A.R. 24-25.
The administrative law judge
therefore concluded that plaintiff is not disabled within the meaning
of the Social Security Act.
A.R. 25.
That decision became the final decision of the Commissioner of
Social Security when the Appeals Council declined review on September
2, 2010.
II.
A.R. 5-8.
Standard
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.
Richardson v. Perales, 402
U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).
Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk
v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981).
This Court does not try the case de novo, nor does it resolve
conflicts in the evidence or questions of credibility.
Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.
536.
Kirk, 667 F.2d at
If the Commissioner’s decision is supported by substantial
evidence, it must be affirmed even if this Court would decide the
3
matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d
1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983)), and even if substantial evidence also
supports the opposite conclusion.
Longworth, 402 F.3d at 595.
III. Evidence
Plaintiff was thirty-nine years old at the time the
administrative law judge issued the final administrative decision.
A.R. 25, 394.
She attended school through the ninth grade and
started, but did not complete, tenth grade because she quit and had a
child.
A.R. 401-402.
Plaintiff admits that she “didn’t hardly even
go to school” when enrolled and her transcripts reflect that she
received primarily poor grades, failing multiple classes.
107-108.
Plaintiff has no prior relevant work experience.
A.R. 402,
A.R. 24.
On September 4, 2003, plaintiff, complaining of left knee pain,
was seen by William Miser, M.D., plaintiff’s primary care physician
since March 2001.
A.R. 166, 261.
knee had a good range of motion.
On examination, plaintiff’s left
A.R. 261.
following the examination was normal.
An x-ray of the left knee
A.R. 274-75.
On November 18, 2004, plaintiff presented to Dr. Miser with
complaints of persistent knee pain, inability to gain weight,
increased stressors resulting from family difficulties, fatigue, and
crying spells.
A.R. 179, 259.
low weight and mild depression.
Dr. Miser diagnosed left knee pain,
A.R. 180, 260.
to counseling and recommended knee exercises.
He referred plaintiff
Id.
On December 16, 2004, an examination by Dr. Miser revealed left
knee tenderness; he recommended continued knee exercises.
4
A.R. 177-
78, 257-58.
On January 18, 2005, T. Rodney Swearingen, Ph.D., performed a
consultative psychological evaluation at the request of the Bureau of
Disability Determination.
A.R. 109-113.
During the exam, plaintiff
complained of tissue damage and weakness in her left leg resulting
from an earlier injury.
A.R. 109.
Plaintiff also reported a history
of sexual assaults as a child. Id.
Plaintiff complained of bad nerves
and depression; she denied attempted suicide or nervous breakdown.
A.R. 109-110.
According to plaintiff, she quit school because she
“was dumb and did not want to listen to her mother.”
A.R. 110.
According to plaintiff, she cannot work because of her
depression, nerves and her leg/physical health.
Id.
Although she had
never worked longer than one month, she has never been fired from a
job.
Id.
She denied having problems interacting with coworkers and
supervisors; she reported difficulty following instructions and
accomplishing repetitive tasks.
Id.
On clinical examination, plaintiff maintained good eye contact
and spoke directly.
A.R. 111.
Plaintiff reported suspiciousness,
repetitive thoughts and behaviors.
Id.
Plaintiff also reported
having crying spells, being depressed, and feeling hopeless at times.
Id.
She worries about bills, finances, and her marriage.
also reported hallucinations. Id.
Id.
She
She enjoys playing cards, watching
television and doing crossword puzzles.
Id.
Plaintiff was alert and
oriented and was able to follow instructions during the evaluation.
A.R. 112.
Persistence was average and pace was adequate.
Id.
had difficulty demonstrating short-term auditory memory and her
5
She
abstract thinking was poor; verbal abilities were average.
Id.
At
the time of the evaluation, plaintiff was living with her husband and
son, who both receive disability benefits. Id.
During a typical day,
plaintiff stays in the house, cleans, prepares meals, and looks after
her son.
Id.
She can bathe and dress herself without help, write
letters, read the newspaper, tell time, make change, and take
medications without reminders.
Id.
Dr. Swearingen reported that
plaintiff acknowledged that she has no problems managing money.
113.
A.R.
Plaintiff does not have a current driver’s license and relies on
her husband to do the shopping.
A.R. 112.
many friends and socializing often.
Plaintiff reported having
Id.
Dr. Swearingen diagnosed post traumatic stress disorder (“PTSD”)
and assigned a global assessment of functioning (“GAF”) score of 55,
which is suggestive of moderate impairment.
A.R. 112-113.
Plaintiff’s ability to relate to others, including fellow workers, and
her mental ability to maintain attention, concentration, persistence,
and pace sufficient to perform repetitive tasks were mildly impaired.
A.R. 113.
Plaintiff’s mental ability to understand, remember, and
follow instructions and her mental ability to withstand stress and
pressures of day-to-day work activity were mildly to moderately
impaired.
Id.
On January 19, 2005, William Blackburn, Ph.D., a psychologist who
previously treated plaintiff, again examined plaintiff upon referral
by her family physician.
A.R. 115, 331.
Plaintiff reported
developmental delays in walking and talking.
A.R. 116.
She attended
school through the tenth grade and received cognitive assistance in
6
school.
A.R. 119.
Plaintiff reported sometimes feeling unhappy, sad,
depressed, worried, afraid, scared, lonely or isolated.
A.R. 125.
She also reported sleep disturbances, trouble controlling her anger,
and losing her appetite or being worried about her weight.
Id.
According to plaintiff, she has trouble making or keeping friends and
has had serious problems with her spouse.
A.R. 126.
Dr. Blackburn
noted that plaintiff had poor insight, appeared anxious and depressed,
and had below normal intellect with suspicious thoughts.
A.R. 127.
Dr. Blackburn diagnosed an adjustment disorder with emotional features
and mild mental retardation/developmental delays.
score of 55.
A.R. 226.
He assigned a GAF
He anticipated providing nine months of
counseling and noted that plaintiff’s prognosis was fair.
Id.
Dr.
Blackburn saw plaintiff and her husband for couple’s therapy through
November 2005.
A.R. 139-156.
During some of these subsequent visits
with Dr. Blackburn, plaintiff reported feeling depressed and stressed
over family situations and her chronic pain.
A.R. 149, 152, 155.
On June 23, 2005, Dr. Miser reported that plaintiff was disabled
as a result of moderately impaired intellectual functioning, left leg
(knee) pain and weakness, and PTSD.
A.R. 166.
On September 30, 2005, Dr. Blackburn sent a letter to plaintiff’s
counsel, advising that plaintiff, who had been referred to Dr.
Blackburn for assistance in strengthening her parenting skills, and
her husband had learned how to care for their medically fragile son.
A.R. 331.
Dr. Blackburn also noted that plaintiff, upon Dr. Miser’s
recommendation, returned to psychotherapy in January 2005 due to
stress over family conflicts and low grade chronic levels of anxiety
7
and depression.
Id.
On March 29, 2006, Dr. Miser completed a Multiple Impairment
Questionnaire and noted that he treats plaintiff every three to six
weeks.
A.R. 236, 243.
Dr. Miser diagnosed chronic left knee pain,
PTSD and a moderate impairment of intellectual functioning.
A.R. 236.
In support of this diagnosis, Dr. Miser referred to Dr. Swearingen’s
January 18, 2005 report and plaintiff’s left knee tenderness.
236-237.
A.R.
Plaintiff’s primary symptoms included pain in her left knee
during exertion, bending and stooping, as well as anxiety and stress.
A.R. 237.
Dr. Miser noted that plaintiff’s pain occurred weekly,
almost daily.
He rated her level of pain and level of fatigue as
moderately severe.
A.R. 238.
In estimating plaintiff’s residual
functional capacity during an eight-hour work day, Dr. Miser opined
that plaintiff could sit for three hours a day, stand/walk for one
hour a day, and must get up and move around every hour for ten
minutes.
A.R. 238-239.
Dr. Miser opined that plaintiff could lift
five to ten pounds occasionally, but never carry any weight.
239.
A.R.
Plaintiff’s pain, fatigue or other symptoms were severe enough
to interfere with her attention and concentration.
A.R. 241.
Dr.
Miser also opined that plaintiff was incapable of even low stress work
and that she needed to take unscheduled breaks to rest.
Id.
He
estimated that plaintiff would be absent from work, on average, more
than three times per month.
A.R. 242.
At a mid-April 2006 office visit, Dr. Miser noted that
plaintiff’s mental health was stable.
A.R. 251-252.
An MRI of
plaintiff’s left knee revealed degenerative changes of the posterior
8
horn of the medial meniscus.
A.R. 277-278.
Dr. Blackburn completed a Psychiatric/Psychological Impairment
Questionnaire dated June 14, 2006.
A.R. 282-289.
He diagnosed
depression, anxiety and indecision in relation to family stressors as
well as mild mental retardation.
A.R. 282.
Dr. Blackburn assigned a
current GAF score of 55 and rated her highest GAF score in the last
year as 58.
Id.
In support of his diagnosis, Dr. Blackburn
identified clinical findings of poor memory, mood disturbances,
emotional lability, difficulty thinking or concentrating, decreased
energy, and pathological dependence or passivity.
noted plaintiff’s recent IQ measurement of 63.
Id.
A.R. 283.
He also
Dr. Blackburn
identified plaintiff’s primary symptoms as anxiety, fear of being
alone, mild to moderate chronic depression, and ongoing family
conflicts.
A.R. 284.
Dr. Blackburn opined that plaintiff’s ability
to remember locations and work-like procedures and ability to
understand and remember one or two step instructions were moderately
limited and that her ability to understand and remember detailed
instructions was markedly limited.
A.R. 285. He rated as markedly
limited her ability to carry out detailed instructions, ability to
maintain attention and concentration for extended periods, ability to
perform activities within a schedule, maintain regular attendance, be
punctual within customary tolerance, ability to sustain ordinary
routine without supervision, ability to work in coordination with or
proximity to others without being distracted by them, ability to make
simple work related decisions, and ability to complete a normal
workweek without interruptions from psychologically based symptoms and
9
to perform at a consistent pace without an unreasonable number and
length of rest periods.
A.R. 285-286.
Dr. Blackburn also
characterized as markedly limited plaintiff’s ability to interact with
the general public, ability to get along with co-workers or peers
without distracting them or exhibiting behavioral extremes, ability to
respond to changes in the work setting, ability to travel to
unfamiliar places or use public transportation and ability to set
realistic goals or to make plans independently.
A.R. 286-287.
Dr.
Blackburn went on to note that plaintiff experienced episodes of
deterioration or decompensation in work or work like settings which
caused her to withdraw from that situation and/or experience
exacerbation of symptoms.
A.R. 287.
He also noted that plaintiff was
very dependent and does not go out without her husband and that she is
easily bothered by minor events.
A.R. 288.
Dr. Blackburn estimated
that plaintiff is likely to be absent from work, on average, more than
three times a month.
A.R. 289.
On December 13, 2006, Dr. Blackburn noted that plaintiff reported
reduced stress.
A.R. 293.
In January 2007, Dr. Blackburn noted that plaintiff had been
referred for treatment beginning in January 2005 due to increased
psychosocial stressors, with symptoms of anxiety, depression and
stress related to caring for her medically fragile son.
A.R. 300.
Dr. Blackburn also noted that plaintiff experiences moderate levels of
chronic anxiety and depression, is completely dependent on her
husband, and has mild developmental delays.
Id.
In light of all of
this, Dr. Blackburn opined that plaintiff, as of January 2007, was
10
unable to work.
Id.
On June 18, 2007, Dr. Blackburn administered the Wechsler
Abbreviated Scale of Intelligence (“WASI”), in which plaintiff
achieved an IQ score of 61, which fell in the range of mentally
deficient.
A.R. 303-304.
On July 9, 2007, Dr. Blackburn completed a form for the Ohio
Department of Job and Family Services, diagnosing mild mental
retardation and chronic adjustment disorder with mixed emotional
features (psychological dependency on husband).
A.R. 305-306.
Dr.
Blackburn noted that plaintiff had no limitations in standing/walking;
could lift ten pounds occasionally; was moderately limited in
pushing/pulling; and was markedly limited in speaking.
A.R. 306.
He
opined that plaintiff was unemployable and would remain so for 12
months or more.
Id.
In a letter dated January 8, 2008, addressed to plaintiff’s
counsel, Dr. Blackburn reported that plaintiff’s “condition remains
essentially the same” and that she functions at “a low level only
getting by with considerable support from her husband and mother.”
A.R. 330.
He opined that plaintiff was unable to work, referring to
two prior letters written by him that describe plaintiff’s
limitations, and noting that plaintiff has mild mental retardation,
social and emotional immaturity, pathological dependence on husband,
very low frustration tolerance, limited self insight and limited
capacity to comprehend minimal expectations of social and vocational
situations.
A.R. 330-332.
After seeing plaintiff in September 2008, Dr. Blackburn completed
11
a Psychiatric/Psychological Impairment Questionnaire dated October 24,
2008.
A.R. 321-329.
Noting that plaintiff continued to be treated on
a monthly basis, Dr. Blackburn diagnosed dysthymia and mild mental
retardation / developmental delays.
55.
Id.
A.R. 321.
Her current GAF was
Dr. Blackburn opined that plaintiff was incapable of
tolerating even low stress at work.
A.R. 327.
On January 6, 2009, Scott Donaldson, Ph.D., a consulting
psychologist, examined plaintiff.
A.R. 334-342.
During the
evaluation, plaintiff was agitated but cooperative, and appeared to be
intimidated by the process.
A.R. 334.
Plaintiff was appropriately
dressed, adequately groomed, and she did not have difficulty
elaborating on her responses.
A.R. 335.
In contrast with prior
reports, plaintiff denied having any children and denied problematic
interfamilial relationships.
A.R. 334.
She reported chronic pain in
her back and knee and problematic relationships at work.
335.
A.R. 334-
She also reported relating poorly to teachers and other students
at school.
A.R. 335.
Plaintiff further reported that she was
enrolled in a special education program before dropping out of school.
Id. Plaintiff complained of situational anxiety and excessive worry.
A.R. 336.
She denied delusions or hallucinations, but admitted to
paranoid ideation and obsessive thoughts about retaliation.
Id.
Dr.
Donaldson noted that plaintiff’s responses to questions indicated an
alert state of consciousness and did not manifest signs of confusion,
although her memory for past and recent events appeared limited.
Id.
He estimated that plaintiff’s intelligence fell in the intellectually
impaired range.
Id.
Dr. Donaldson also reported that plaintiff’s
12
judgment is limited and suggested that she may need assistance in that
regard.
Id.
Although she earlier denied having children, plaintiff
reported living with her husband, son, two step-children and one stepchild’s girlfriend.
Id.
Noting that plaintiff may have responded
randomly to his inquiries, Dr. Donaldson reported that the results of
the MMPI-2 testing “are of questionable validity.” A.R. 337.
On the
WAIS-IV, which Dr. Donaldson regarded as valid, plaintiff achieved a
verbal IQ score of 58, a performance IQ score of 54 and a full IQ
score of 55.
Id.
Dr. Donaldson diagnosed dysthymic disorder and
generalized anxiety disorder.
A.R. 338.
Dr. Donaldson deferred a
diagnosis of mild mental retardation because it was “not possible to
determine if the claimant’s intellectual deficit manifested itself
during the developmental period or whether there had been a
concomitant deficit in adaptive behavior[.]”
Id.
He opined that
plaintiff’s ability to understand, remember and carry out one- or twostep job instructions did not appear to be impaired; her ability to
perform repetitive tasks did not appear to be limited; her level of
motivation, interpersonal relationship skills and ability to withstand
stress and pressures associated with day-to-day work activity appeared
to be moderately limited.
Id.
Dr. Donaldson also completed a Medical Source Statement of
Ability to Do Work-Related Activities (Mental).
A.R. 340-342.
He
opined that plaintiff was markedly limited in her ability to make
judgments on simple work-related decisions and that she was moderately
limited in her ability to interact appropriately with the public and
with supervisor(s) and co-workers.
A.R. 340-341.
13
He also opined that
plaintiff was unable to manage benefits in her own best interest.
A.R. 342.
At the administrative hearing on January 10, 2008,1 plaintiff
testified that she injured her left knee while she was a passenger in
a motor vehicle accident. A.R. 432-433.
She described the pain in
this knee “like needles,” which is intermittent and which limits her
ability to walk and to move things.
A.R. 437-439.
She has difficulty
carrying laundry up and down steps.
A.R. 439-440.
Rest alleviates
the knee pain. A.R. 438-439.
Plaintiff also testified that she is depressed and stressed
primarily because of her concerns about family members and her son’s
health.
A.R. 433-434, 444-46.
tall and weighs eighty pounds.
Plaintiff is four feet, seven inches
A.R. 433.
She has a hard time keeping
food down, keeping weight on, and sleeping.
A.R. 433-434, 444, 450.
When she is stressed, she isolates herself and goes into a room to
cry.
A.R. 445-446.
Attending couples counseling with Dr. Blackburn
has helped her; her husband has been supportive.
A.R. 447-448.
Plaintiff’s son requires heart medication twice a day.
432.
Her son is also developmentally delayed.
A.R. 436.
A.R. 430-
Plaintiff
helps him with his homework by being there to “support him” and asking
him to read his books to her.
A.R. 435-436, 443.
Plaintiff testified that sometimes she can add, subtract, get
change while shopping at stores, and read the newspaper.
443.
A.R. 442-
She sometimes has problems with her concentration and memory and
1
As noted supra, administrative hearings were held on January 10, 2008,
December 9, 2008, and July 24, 2009. A.R. 362-456.
14
forgets to return calls.
classes in school.
A.R. 451.
She was not in special education
A.R. 428.
At the administrative hearing held on December 9, 2008, plaintiff
testified that she leaves her home only with her husband.
94.
She cannot climb stairs because of her knee.
A.R. 393-
A.R. 396-397.
She
administers her son’s heart medication, helps him get ready for
school, and sometimes helps him get dressed or bathe himself.
397-99, 411.
A.R.
She helps him with his homework, including addition
problems in math class, and plays games with him.
A.R. 400-01.
According to plaintiff, her son reads better than she does.
A.R. 402-
03.
Plaintiff testified that she was in regular high school classes.
A.R. 419-20. She can write, add and subtract, but cannot multiply or
divide.
A.R. 403.
She sometimes does the cooking at home, but her
husband does a lot of the cooking.
A.R. 410-411.
She held only one
job, as a clothes tagger in a thrift store, but quite after one month
after she was asked to pick up trash from the floor.
A.R. 404.
She
never worked thereafter because of her knee injury and depression.
A.R. 404-09.
She takes Ibuprofen for knee pain. A.R. 407-08.
Although plaintiff sometimes has difficulty getting along with
family members, she has no difficulty getting along with other people.
A.R. 409-10.
During a typical day, plaintiff watches television,
“lay[s] around a lot because it’s hard for me to clean[,]” and sits
around, talks and plays cards in the afternoon.
A.R. 412-13.
She
sometimes does the grocery shopping and light housework. A.R. 413-14.
Sitting is her most comfortable position.
15
A.R. 417.
At the administrative hearing held on July 24, 2009, plaintiff
testified that she currently weighs ninety pounds and takes Ensure to
help maintain her weight.
A.R. 369-370.
She experiences severe
depression a few times a week during which she avoids contact with
everyone.
A.R. 370.
Because her temper is affected by her
depression, she would have problems working closely with co-workers
and with supervisors who were critical of her and her work.
A.R. 370-
71
Plaintiff also complained of headaches for which she takes
Ibuprofen. A.R. 372.
372-73.
She naps once a day for an hour or so.
A.R.
She sometimes cooks, does the laundry and washes the dishes.
A.R. 378.
bathe him.
She provides medication to her 14 year old son and helps
A.R. 374-75
The vocational expert noted that none of plaintiff’s past
employment as tagger, labeler, housekeeper and fast food worker lasted
longer than thirty days.
A.R. 381.
Asked to assume a claimant with
plaintiff’s vocational profile, a limitation to light work and the
mental limitations recommended by Dr. Donaldson,2
the vocational
expert testified that such a claimant could perform light, unskilled,
simple, repetitive work such as a cleaner (1100 jobs available locally
and 6,000 jobs available state-wide), as a labeler and marker (450
jobs locally and 3,500 jobs state-wide) and as a packer (2,000 jobs
2
These limitations include mild limitations in understanding and
remembering simple instructions and carrying out simple instructions and
responding appropriately to usual work situations and to changes in routine
work setting; moderate limitations in understanding and remembering complex
instructions, carrying out complex instructions, interacting appropriately
with the public, supervisors and co-workers; marked limitations in making
judgments on simple work-related decisions and making judgments on complex
work-related decisions. A.R. 338, 340-341.
16
locally and 9,000 jobs state-wide).
Id.
Dr. Swearingen’s limitations3
would also permit such employment. A.R. 383.
Assuming Dr. Miser’s physical limitations – i.e., sitting for no
more than three hours and standing and walking for no more than one
hour out of an eight-hour day – such a claimant could not perform the
light, unskilled jobs previously described.
IV.
Id.
Administrative Decision
In his decision, the administrative law judge found that
plaintiff’s severe impairments consist of left knee arthritis, low
weight, borderline intellectual functioning/mild mental retardation,
and affective and anxiety-related disorders.
A.R. 19-20.
Plaintiff’s
impairments neither meet nor equal a listed impairment and leave her
with the residual functional capacity to perform a reduced range of
light work.
A.R. 20-24.
Relying on the testimony of the vocational
expert, the administrative law judge found that plaintiff’s residual
functional capacity permits her to perform work that exists in
significant numbers, including such jobs as a cleaner and
laborer/packer.
A.R. 24-25.
The administrative law judge therefore
concluded that plaintiff is not disabled within the meaning of the
Social Security Act.
V.
A.R. 25.
Discussion
In Plaintiff’s Statement of Errors, Doc. No. 9, she raises three
challenges to the administrative law judge’s conclusion: (1) the
administrative law judge erred in determining that plaintiff did not
3
Dr. Swearingen’s opinion is detailed supra at pp. 5-7.
112-113.
17
See also A.R.
have an impairment that meets or equals the criteria listed in Listing
12.05(B) or (C); (2) the administrative law judge failed to properly
weigh the medical source opinions; and (3) the administrative law
judge failed to properly evaluate plaintiff’s credibility.
The Court
shall address each contention.
A.
The administrative law judge’s finding that there was no
evidence of mental retardation during the developmental
period.
Plaintiff argues that the administrative law judge erred at step
three of the sequential evaluation because plaintiff has an impairment
that meets or equals the criteria of an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 § 12.05(B) and (C), i.e., mental
retardation.
Listing 12.05 requires, in pertinent part, the
following:
Mental retardation refers to significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset of
the impairment before age 22.
The required level of severity for this disorder is met when
the requirements in A, B, C, or D are satisfied.
*
*
*
*
B. A valid verbal, performance, or full scale IQ of 59 or
less;
OR
C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function[.]
Id. (emphasis added).
Therefore, in order to meet Listing 12.05, a
mental impairment must satisfy both the description in the
introductory paragraph of § 12.05 (“i.e., the evidence demonstrates or
18
supports onset of the impairment before age 22") and one of the four
sets of criteria listed in subparagraphs A through D.
Halter, 279 F.3d 348, 354 (6th Cir. 2001).
Foster v.
In this case, plaintiff
contends that she satisfied criteria under subsection (B) or ©.
There is no dispute that plaintiff’s IQ scores satisfy the
requirements under Listing 12.05(B) and (C) and no dispute that
plaintiff had other severe impairments imposing a significant workrelated limitation of function.
Instead, plaintiff challenges the
administrative law judge’s finding that there was no evidence of
mental retardation during the developmental period, i.e., before the
age 22.
A.R. 19-20.
In making this argument, plaintiff relies on
McPeek v. Sec’y of Health and Human Servs., No. 93-5204, 1994 WL 56929
(6th Cir. Feb. 24, 1994), for the proposition that “absent proof that
the claimant suffered some type of brain or neurological trauma after
the development period, an onset prior to age 22 must be assumed.”
Statement of Errors, p. 14.
See also Plaintiff’s Reply to Opposition
to Statement of Errors, Doc. No. 11 (“Reply”), pp. 2-3.
The
Commissioner argues that plaintiff’s reliance on McPeek is misplaced.
Doc. No. 10, pp. 9-12.
In McPeek, the United States Court of Appeals for the Sixth
Circuit concluded that substantial evidence did not support the
Commissioner’s finding that the claimant functioned on an intellectual
level above the mental retardation range before age twenty-two.
McPeek, 994 WL 56929, at *2 (citing, inter alia, the Commissioner’s
medical expert who opined that a person’s mental ability remains
similar unless one suffers a brain or neurological trauma or due to
19
the aging process or disease).
In so finding, the Sixth Circuit noted
that plaintiff’s IQ scores fell within the mental retardation range
and that failing academic grades were consistent with someone with
significantly impaired performance before age twenty-two.
Id.
Even if McPeek stands for the broad proposition for which
plaintiff cites it, the Sixth Circuit has since rejected that
proposition because the Listing of Impairments has been amended since
McPeek was decided:
The McPeek decision applied an earlier version of the
Listing of Impairments, which has since been amended to
clarify that a claimant must establish both that he
currently has an IQ of 60 through 70 and that he exhibited
subaverage mental functioning and adaptive deficits during
his developmental period. See 65 Fed.Reg. 50746, 50776
(August 21, 2000); see also Foster, 279 F.3d at 354
(discussing the amendment). The reasoning in McPeek is thus
no longer consistent with the showing required by the
regulations, and this Circuit’s published case law has not
followed McPeek. See Foster, 279 F.3d at 354-55
(interpreting listing 12.05C to require separate evidence,
beyond present IQ scores, of deficits during the claimant’s
developmental period).
Turner v. Comm’r of Soc. Sec., No. 09-5543, 2010 WL 2294531, at *3
(6th Cir. June 7, 2010) (addressing claimant’s argument that McPeek
stands “for the proposition that, absent evidence that a claimant’s IQ
has declined, present IQ scores demonstrate significantly subaverage
intelligence and adaptive deficits during the developmental period”).
Plaintiff also argues that, even if McPeek is no longer
controlling authority, she has presented evidence of an onset during
the developmental period beyond her present IQ scores, i.e., the
“records that demonstrate[] her failing grades and need for cognitive
assistance while in school.”
Reply, pp. 2-3.
20
However, the record
also includes evidence that plaintiff was not in special education
classes. A.R. 419-20, 428.
Plaintiff herself testified that her
educational problems stemmed from desire to defy her mother.
A.R.
110. There is therefore evidence that plaintiff’s failing grades were
the result of factors other than subaverage intellectual functioning.
Moreover, the Sixth Circuit more recently has clarified that it “has
never held that poor academic performance, in and of itself, is
sufficient to warrant a finding of onset of subaverage intellectual
functioning before age twenty-two.”
Hayes v. Comm’r of Soc. Sec., No.
09-5409, 357 Fed. Appx. 672, at *677 (6th Cir. Dec. 18, 2009).
Plaintiff next attacks the administrative law judge’s finding
that plaintiff’s current level of functioning, e.g., currently
literate, carrying out household chores and caring for a special needs
son, is inconsistent with a conclusion that she experienced deficits
in adaptive functioning prior to age 22.
Reply, p. 3.
However, as
noted supra, Listing 12.05 expressly requires evidence of a “deficit
in adaptive functioning” prior to the age of 22.
See also Turner,
2010 WL 2294531, at *492 (noting that adaptive functioning includes
social skills, communication, and daily living skills).
A claimant’s
current functioning may be considered in making this determination.
See Hayes, 357 Fed. Appx. at 677 (finding no deficits in adaptive
functioning where, inter alia, plaintiff cared for herself and
husband, shopped, cooked meals, did laundry, managed finances, and
takes public transportation); Burrell v. Comm’r of Soc. Sec., No.
99-4070, 2000 WL 1827799, at *2 (6th Cir. Dec. 8, 2000) (noting that
the claimant “has remained fairly active, maintains an interest in his
21
household, and enjoys apparent satisfactory relationships with family
members.
He drives and can lift small weights with both arms” and
therefore “is still physically capable of earning a living and
contributing to society”).
Accordingly, this circuit’s precedent
supports the administrative law judge’s reference to plaintiff’s
adaptive functioning in this case.
Viewing the record as a whole, therefore, the Court concludes
that the administrative law judge’s finding that plaintiff does not
have an impairment that meets or equals the criteria of Listing
12.05(B) or (C) enjoys substantial support.
B.
The administrative law judge’s evaluation of the medical
source opinions.
Plaintiff next argues that the administrative law judge failed to
properly weigh the medical source opinions, contending that the
opinions of Dr. Blackburn, a treating psychologist, and Dr. Miser, a
treating physician, were improperly rejected.
pp. 16-19; Reply, p. 2.
Statement of Errors,
To be afforded controlling weight, the
opinion of a treating physician must be well-supported by medically
acceptable clinical and laboratory diagnostic techniques, and must not
be inconsistent with other substantial evidence in the record.
Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007); 20 C.F.R. §
416.927(d)(2).
In weighing the opinions of treating physicians, an
administrative law judge must consider such factors as the length,
nature and extent of the treatment relationship, the frequency of
examination, the medical specialty of the treating physician, the
opinion’s supportability by evidence, and its consistency with the
record as a whole.
20 C.F.R. § 416.927(d)(2) - (6); Wilson v. Comm’r
22
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Even where the
administrative law judge declines to accord controlling weight to the
opinion of a treating physician, the administrative law judge “must
still determine how much weight is appropriate. . . .”
Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
Moreover, an
administrative law judge must provide “good reasons” for discounting
the opinions of a treating physician, i.e., “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.’”
Rogers, 486 F.3d at 242 (citing
Soc. Sec. Rul. 96-2p, 1996 SSR LEXIS 9, at *12, 1996 WL 374188, at
*5).
The administrative law judge in this case rejected Dr. Miser’s
assessment that plaintiff was substantially limited in her ability to
work.
William Miser, M.D., opined that the claimant was limited to
a substantially reduced range of sedentary work that is
incompatible with fulltime work activity. . . ., but Dr.
Miser’s assessment appears to be based primarily on the
claimant’s subjective complaints of pain rather than any
objective evidence. The claimant’s treatment notes document
only very conservative care with no indication of the
frequency and intensity of pain reported to Dr. Miser.
Further, as summarized in this decision, the claimant’s
actual level of activities of living are inconsistent with
her subjective report to Dr. Miser. Accordingly, Dr.
Miser’s assessment is rejected.
*
*
*
*
Dr. Miser suggested that the claimant was incapable of even
low stress work and that pain would frequently interfere
with attention and concentration. . . . However, Dr. Miser
is not a mental health professional and the claimant’s
complaints of pain, as noted above, are inconsistent with
the objective medical treatment record. Dr. Miser’s opinion
appeared to be based on the assessment of Dr. Blackburn, the
23
claimant’s treating psychologist, who has reported a mental
functional capacity suggesting an inability to perform
competitive work. . . .
A.R. 23 (citation to record omitted).
However, the administrative law
judge also considered, but rejected, Dr. Blackburn’s conclusions.
William Blackburn, Ph.D., a psychologist, suggested that the
claimant was limited to sedentary work . . . but Dr.
Blackburn is a mental health professional and did not treat
the claimant for physical conditions. As a psychologist, he
lacks the expertise to make such an assessment.
*
*
*
*
[Dr. Blackburn] reported a mental functional capacity
suggesting an inability to perform competitive work and
consistent with marked mental work-related limitations. . .
. It is concluded that Dr. Blackburn’s assessments are based
substantially on the subjective presentation and reports of
the claimant, which are not entirely credible. Therefore,
Dr. Blackburn’s assessments are rejected.
Id. (citation to record omitted).
This Court agrees that Dr.
Blackburn’s assessments in this regard are entitled to little weight.
The administrative law judge found that plaintiff’s subjective
complaints were disproportionate and not supported by the record.
This conclusion finds substantial support in Dr. Donaldson’s report
following his consultative examination of the plaintiff.
For example,
Dr. Donaldson noted that plaintiff’s responses to questions indicated
an alert state of consciousness with no signs of confusion.
A.R. 336.
Plaintiff was appropriately dressed, adequately groomed, and she had
no difficulty elaborating on her responses.
A.R. 335.
Dr. Donaldson
opined that plaintiff’s ability to understand, remember and carry out
one- or two-step job instructions did not appear to be impaired and
that her ability to perform repetitive tasks did not appear to be
limited.
A.R. 338.
He further opined that her level of motivation,
24
interpersonal relationship skills and ability to withstand stress and
pressures associated with day-to-day work activity appeared to be only
moderately limited.
Id.
Further support for the administrative law
judge’s finding in this regard is found in the records of Dr.
Swearingen, who performed a consultative psychological evaluation.
A.R. 109-113.
Dr. Swearingen opined that plaintiff’s ability to
relate to others, including fellow workers, and her mental ability to
maintain attention, concentration, persistence, and pace to perform
repetitive tasks were only mildly impaired, A.R. 113, and that
plaintiff’s mental ability to understand, remember, and follow
instructions and her mental ability to withstand stress and pressures
of day-to-day work activity were only mildly to moderately impaired.
Id.
In short, the Court concludes that the administrative law judge
did not err in his evaluations of the medical opinions reflected in
the record.
Plaintiff’s insistence that Dr. Blackburn’s opinion was “based
upon clinical and diagnostic findings,” Statement of Errors, p. 17
(citing A.R. 283, 330-331), does not militate a different result.
As
an initial matter, two of the pages in the record to which plaintiff
cites are simply letters that Dr. Blackburn wrote that do not provide
evidence of objective findings.
A.R. 330-331.
The third page cited
by plaintiff is simply a form taken from an evaluation in June 2006
with some boxes checked reflecting “clinical findings,” containing
very little explanation for the findings.
A.R. 283.
Moreover,
plaintiff points to no treatment note detailing objective findings to
support Dr. Blackburn’s conclusion that plaintiff has marked mental
25
work-related limitations.
Instead, the record reflects that plaintiff
saw Dr. Blackburn sporadically for family counseling from 2005 through
2007.
See, e.g., A.R. 291-99.
In early 2005, Dr. Blackburn noted
that plaintiff’s prognosis was “fair” and that she would not require
treatment for more than nine months.
A.R. 129.
Taken together with
ample instances of plaintiff’s adaptive functioning discussed supra,
the Court is persuaded that the administrative law judge did not err
in his evaluation of the opinions of Drs. Miser and Blackburn.
C.
The administrative law judge’s evaluation of plaintiff’s
credibility.
Finally, plaintiff challenges the administrative law judge’s
assessment of plaintiff’s credibility, arguing that her marginal daily
activities were not inconsistent with her allegations concerning the
intensity, persistence and limiting effects of her symptoms.
Statement of Errors, pp. 19-20.
Plaintiff also contends that the
administrative law judge erred when he relied upon his lay
observations of plaintiff during the hearing.
Id. at 20.
An administrative law judge’s findings concerning the credibility
of a claimant’s testimony about her pain or other symptoms “are to be
accorded great weight and deference, particularly since an
administrative law judge is charged with the duty of observing a
witness's demeanor and credibility.”
127 F.3d 525, 531 (6th Cir. 1997).
Walters v. Comm’r of Soc. Sec.,
“Nevertheless, an administrative
law judge’s assessment of a claimant’s credibility must be supported
by substantial evidence.”
Id.
The Commissioner, speaking through the
Rulings, mandates in part:
26
The reasons for the credibility finding must be grounded in
evidence and articulated in the determination or decision.
It is not sufficient to make a conclusory statement that
“the individual’s allegations have been considered” or that
“the allegations are (or are not) credible.” It is also not
enough for the adjudicator to simply recite the factors that
are described in the regulations for evaluating symptoms.
The determination must contain specific reasons for the
finding on credibility, supported by evidence in the case
record, and must be sufficiently specific to make clear to
the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and the
reasons for that weight.
SSR 96-7p, 1996 SSR LEXIS 4, 1996 WL 374186.
In the case presently before the Court, the administrative law
judge did not err in his analysis of the evidence relating to
plaintiff’s allegations of disability and the limiting effects of her
alleged symptoms.
The administrative law judge analyzed plaintiff’s
credibility and subjective complaints as follows:
The claimant testified that she continues to experience
depression and anxiety but reports some improvement with
medications. She denied any side effects from her
medications. She said that she continues to be
uncomfortable around others and becomes badly depressed
about twice a week. She stated that she has difficulty
accepting criticism from others and is unable to control her
temper. She said that she weighs 70 pounds. She
represented that she has a torn ligament in her left knee
and continues to have related pain. She testified that she
has headaches that she controls with ibuprofen. After
careful consideration of the evidence, it is concluded that
her medically determinable impairments could reasonably be
expected to cause some of her alleged symptoms; however, her
statements concerning the intensity, persistence, and
limiting effects of those symptoms are not credible to the
extent that they are inconsistent with the residual
functional capacity outlined in this decision.
The record confirms that the claimant has a left knee
condition and low weight, but her treatment has been
intermittent and very conservative. Although she testified
that she weighs just 70 pounds, her height is just four
feet, seven inches, and there is no evidence of substantial,
related conditions. There is no objective evidence to
suggest that her weight or her knee condition would prevent
27
her from engaging in a full range of light exertional work,
as was found in the prior ALJ decision. . . .
*
*
*
*
The claimant’s subjective complaints are clearly
disproportionate to and not supported by the objective and
substantial evidence in the record. Her actual level of
adaptive functioning is inconsistent with her IQ scores.
Indeed, Dr. Donaldson observed that the claimant was
appropriately dressed, adequately groomed, alert, and fully
oriented, with no manifested signs of confusion. . . .
According to Dr. Donaldson, there was no evidence of
impulsiveness, compulsiveness, difficulty elaborating on
responses, manifestations of flights of ideas, symptoms of
mania, or anhedonia. The claimant reported that she watched
television, cared for her son, cooked, cleaned, did the
laundry, maintained friendships, and shopped for groceries
monthly. The claimant had completed her own disability
forms. . . . She reported that she played cards and
socialized. . . . She reported that she had never been fired
from a job and enjoyed playing cards and working crossword
puzzles. . . . She denied any difficulty managing her money
and reported good reading, writing, and spelling skills. . .
.
Furthermore, the claimant’s testimony was extremely
argumentative and exaggerated. She exhibited an
inconsistent demeanor. She was observed to attend the
hearing proceedings closely and fully without any noted
distractions or overt pain behavior. Her level of activity
and her self described ability is not consistent with the
level and persistence of symptoms and limitations that she
alleges, including her testimony that she can only sit for
15 minutes, and walk for less than a block. . . . She
testified that she cleans some laundry and washes some
dishes, but then said that her disabled husband does the
cooking. She acknowledged that she quit a job tagging
clothes at a thrift store because she was asked to also pick
up trash, not because of any particular disability. Rather,
she testified that she did not have any difficulty
whatsoever tagging clothes.
The evidence discloses that the claimant has required only
very conservative treatment. There is no documentation of
significant, persistent side effects from her medications,
and she has not been regularly taken [sic] her medication.
In summary, the location, duration, frequency, and intensity
of her alleged symptoms, as well as precipitating and
aggravating factors, are adequately addressed and
accommodated in the residual functional capacity outlined in
these findings.
28
A.R. 23-24 (citations to the record omitted).
“[A]n ALJ’s findings
based on the credibility of the applicant are to be accorded great
weight and deference, particularly since an ALJ is charged with the
duty of observing a witness’s demeanor and credibility.”
Id. citing
Villarreal v. Sec’y of Health and Human Servs., 818 F.2d 461, 463 (6th
Cir. 1987).
This Court concludes that the administrative law judge’s
credibility determination applied all appropriate standards and enjoys
substantial support in the record.
In short, the Court concludes that the decision of the
Commissioner is supported by substantial evidence and must therefore
be affirmed.
It is therefore RECOMMENDED that the decision of the Commissioner
be affirmed and that this action be dismissed.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).
28
Response to objections must be
filed within fourteen (14) days after being served with a copy
thereof.
F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
29
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters,
638 F.2d 947 (6th Cir. 1981).
January 23, 2012
(Date)
s/Norah McCann King
Norah Mc Cann King
United States Magistrate Judge
30
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