Artis v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION that 14 Statement of Specific Errors be overruled & that judgment be entered in favor of the Commissioner. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 4/9/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jermaine Artis,

:

Plaintiff,

:

v.

:

Michael J. Astrue,
:
Commissioner of Social Security,
Defendant.

Case No.

2:11-cv-321

JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Jermaine Artis, filed this action seeking review
of a decision of the Commissioner of Social Security denying his
applications for disability insurance benefits and supplemental
security income.

His most recent applications (he had filed

earlier applications which were denied) were filed on December
21, 2005, and alleged that plaintiff became disabled on December
7, 2004.

He claims a disability based primarily upon cognitive

disorders.
After initial administrative denials of his claim, plaintiff
was given a hearing before an Administrative Law Judge on
November 13, 2008.
denied benefits.

In a decision dated January 28, 2009, the ALJ

That became the Commissioner’s final decision

on February 18, 2011, when the Appeals Council denied review.
After plaintiff filed this case, the Commissioner filed the
administrative record on July 7, 2011.

Plaintiff filed his

statement of specific errors on September 6, 2011.
Commissioner filed a response on November 15, 2011.

The
No reply

brief was filed, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff’s testimony at the administrative hearing held in
connection with his current application for benefits is found at

pages 1538 through 1570 of the record, and he also answered some
questions put to him by the vocational expert. That testimony can
be summarized as follows.
Plaintiff was 32 years old at the time of the hearing.
is a high school graduate and is able to read, but not well.
of his classes were special education classes.

He
All

His last job was

doing factory work, but he was fired for not following
instructions.

He had, in the past, been fired from other jobs as

well, such as dishwasher at a fast food restaurant or order
filler at a grocery store.

At the hearing held in connection

with his earlier application, he said he was a janitor for
several years and was laid off for lack of work.

(Tr. 1521-22).

Plaintiff testified that he suffers from high blood
pressure, for which he takes medication, and asthma.
breathing machine four times each day.

Additionally, he has

sleep apnea and uses a CPAP machine at night.
from depression.

He uses a

He also suffers

The medication he takes makes him sleepy.

Lastly, he has back pain due to being overweight.
Plaintiff can lift fifty pounds and has no restrictions on
sitting, walking or standing.

He does household chores but does

not shop because people make him uncomfortable.
and mows grass.

He goes fishing

He reported a past history of use of alcohol and

marijuana, as well as arrests for disorderly conduct and assault.
On a typical day, plaintiff gets up about 11:00, takes
medicine, watches television, and takes a nap.
a friend’s house to visit.
evening.

He might walk to

He watches more television in the

He will sleep six or seven hours a day due to

difficulty sleeping at night.

He believed he could work if he

could find a job.
III.

Medical and Other Records

The medical and other records in this case are found
beginning on page 365 of the administrative record.
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They are

quite voluminous (the record itself consists of some 1584 pages)
and they will not all be summarized here.

The records which are

relevant to the ALJ’s decision can be summarized as follows.
Plaintiff’s statement of errors focuses on these portions of
the record.

First, he relies on an evaluation done by Dr. Rahn,

a psychologist, in June, 2003.

By that date, plaintiff had been

a client of Dr. Rahn’s for about five months and had just been
fired from a job due to “disobedience of orders.”

He had some

chemical dependency issues but had been sober for about five
months.

Testing showed problems in the areas of attending and

focusing, learning and remembering numbers and verbal concepts,
and doing math.

He was reading at a fifth-grade level.

His

full-scale IQ was measured at 71, and he scored above 70 on the
separate parts of the IQ test.

Dr. Rahn was “unclear” about

whether plaintiff qualified for disability benefits.

He thought

that a referral to vocational agencies would be beneficial and
that plaintiff might be able to get work if he had better
training and preparation for work activity.
60.

(Tr. 1271-72).

His GAF was rated at

At about that same time, Dr. Rahn completed

a mental functional capacity assessment form, indicating that
plaintiff was markedly limited in his ability to function in
three areas - sustaining an ordinary routine without special
supervision, accepting instructions and responding appropriately
to supervisors, and traveling in unfamiliar places or using
public transportation - and moderately limited in eight others.
He also stated that plaintiff was unemployable under normal
circumstances.

(Tr. 877-78).

Next, plaintiff recounts the findings made by Dr. Griffith,
his psychiatrist.

She evaluated his mental capacity on February

3, 2006, and again on November 27, 2007.

Both times, she stated

that he had either poor or no ability to function in many areas
of work-related and social activities, including dealing with
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work stress and successfully completing either a workday or a
work week.

She noted diagnoses of major depressive disorder,

generalized anxiety disorder, ADHD, social phobia, and borderline
intelligence.

(Tr. 1300-03).

He also points out a treatment

note from September 8, 2006, indicating that when he was doing
well, which was not all that often, he was still staying in bed
two days per week (Tr. 982) and that he had been fired from a job
for not following instructions despite having a good attitude.
(Tr. 983).
Plaintiff’s statement of errors also reviews records from
his case manager.

Those notes detail his difficulty staying on

task and following directions.

E.g., Tr. 1122, 1125.

The notes

also reflect comments made by plaintiff’s landlord, who had
employed him for odd jobs, stating that he was terminating the
arrangement because plaintiff worked too slowly and spent too
much money on questionable amounts of supplies.

(Tr. 1129).

Finally, the statement of errors acknowledges a records
review done by Michael Wagner, a state agency consultant.

That

report, dated April 11, 2006, indicates that plaintiff suffered
from a dysthymic disorder and a depressive disorder as well as
social phobia and an anxiety disorder.

These disorders produced

only a mild degree of limitation in plaintiff’s activities of
daily living and his social functioning, but they moderately
affected his ability to maintain concentration, persistence and
pace.

The form indicates moderate limitations in seven separate

areas, the most significant of which are the ability to maintain
attention and concentration for extended periods, to work closely
with others, and to interact appropriately with the public and
with supervisors.

(Tr. 901-19).

In response, the Commissioner emphasizes these additional
portions of the record.

In addition to the evaluations done by

Dr. Griffith in 2006 and 2007, she also evaluated plaintiff’s
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mental functioning in 2005, and rated him as extremely limited in
four areas, including maintaining attention and concentration for
extended periods and working closely with others, and as markedly
limited in four other areas, including getting through a normal
workday or workweek and maintaining schedules and regular
attendance.

(Tr. 692).

The Commissioner also directs the

Court’s attention to a letter written on August 10, 2006, by
plaintiff’s vocational rehabilitation counselor, David Cingle,
who reported that plaintiff presented “many vocational
challenges” and that his independent efforts to find work
resulted in his being fired from three different jobs for
“inability to stay on task, poor work performance as well as
attitude.”

Mr. Cingle thought that plaintiff’s inability to

maintain employment was “in large part because of his
disability.”

(Tr. 832).
IV.

The Vocational Testimony

Ms. Ewers, a vocational expert, also testified at the
administrative hearing.

Her testimony begins at page 1570.

She

noted that plaintiff had worked as store laborer, a job that was
medium and unskilled, and that other jobs plaintiff had done,
such as working in a fast food restaurant or a factory, involved
only simple, repetitive work.

She was asked a series of

questions about a hypothetical person who, as the question was
finally phrased, could work at all exertional levels but who
could not climb ladders, ropes, or scaffolds, or work around
hazards; who could perform only low-stress jobs with one- or twostep job instructions which involved simple tasks requiring
little, if any, concentration, and which did not involve
production quotas, over-the-shoulder supervision, or complex or
detailed instructions; who could not have more than limited
contact with co-workers or supervisors and could not deal
directly with the public; and who was limited to jobs which
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required no more than third-grade reading skills and no math
skills.

Ms. Ewers testified that such a person could not perform

any of plaintiff’s past work, but he could do about 10,000 jobs
at the medium exertional level and about 5,000 jobs at the light
exertional level.

Such jobs would include hand packager, spray

painter, washer, order filler, laundry folder, small parts
assembler, warehouse checker and machine tender.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 25
through 39 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that plaintiff
met the insured requirements of the Social Security Act through
March 31, 2007.

Next, he found that plaintiff had not engaged in

substantial gainful activity from his alleged onset date of
December 7, 2004 through the date of the decision.

As far as

plaintiff’s impairments are concerned, the ALJ found that
plaintiff had severe impairments including asthma, borderline
intellectual functioning, depression/anxiety, sleep apnea, and
obesity.

The ALJ also found that these impairments did not meet

or equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that plaintiff had the residual functional
capacity to perform work activity at all exertional levels but
that he could not work in an environment which would expose him
to pulmonary irritants.

He also could not climb ladders, ropes,

or scaffolds, or work around hazards.

From a psychological

standpoint, plaintiff could perform only low-stress jobs with
one- or two-step job instructions which involved simple tasks
requiring little, if any, concentration, and which did not
involve production quotas, over-the-shoulder supervision, or
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complex or detailed instructions.

Additionally, he could not do

a job requiring teamwork, could not have more than limited
contact with co-workers or supervisors, could not deal directly
with the public, and was limited to jobs which required no more
than third-grade reading skills and no math skills.

The ALJ

accepted the vocational expert’s testimony that someone with such
limitations could still perform a significant number of jobs.

As

a result, the ALJ concluded that plaintiff had not demonstrated
an entitlement to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, plaintiff raises two
following issues.

First, he contends that the ALJ erred by

finding that his combination of impairments did not satisfy the
criteria for disability set out in Section 12.05(C) of the
Listing of Impairments.

Second, he argues that the ALJ did not

accord appropriate weight to the opinions of the treating
sources, or, alternatively, did not adequately explain why their
opinions were discounted.

The Court generally reviews the

administrative decision under this legal standard:
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
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1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
In support of his first assignment of error, plaintiff
argues that he has satisfied the requirements of Section 12.05(C)
of the Listing of Impairments.

That section presumes a person to

be disabled if the person suffers from mental retardation with a
valid IQ score of between 60 and 70 and has, in addition, another
severe impairment.

Plaintiff points to IQ testing done when he

was eleven, which produced scores of 69 and 70 and which showed
deficits in areas of adaptive functioning, and to Dr. Rahn’s
later testing, which produced scores barely above 70, with some
margin for error, and Dr. Rahn’s suggestion that plaintiff was
mildly mentally retarded.

Plaintiff also criticizes the ALJ for

supporting his finding of an absence of mental retardation with
evidence that plaintiff had been able to live independently since
high school and hold a number of jobs, arguing that the ability
to perform those types of functions is not mutually exclusive of
mental retardation.

Since plaintiff also was found to have other

severe impairments, he argues that all the elements of this
Listing have been satisfied.
The ALJ placed heavy reliance on the later test scores
reported by Dr. Rahn as being more indicative of plaintiff’s
ability than the fifth grade scores, which the ALJ stated were
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probably due to either a poor test effort or distractions during
the testing process.

The notes from that testing process

indicate a distinct lack of motivation on plaintiff’s part and a
poor attitude, so there is some support for the ALJ’s
observations.

(Tr. 858-60).

Although the fact that plaintiff

can live independently is not determinative of the issue of
whether he suffers from mild mental retardation, it is some
evidence which the ALJ was entitled to consider in the context of
the entire record.

See, e.g., West v. Com’r of Social Security,

240 Fed. Appx. 692 (6th Cir. July 5, 2007)(ALJ could use various
activities of daily living and work history to discount claim of
mental retardation); Brooks v. Astrue, 2010 WL 1254323, *8 (N.D.
Ohio March 24, 2010)(noting that an ALJ is permitted to use “life
experience factors” in evaluating a claim of mental retardation).
While there is some authority for the proposition that such
factors as the ability to make change, ride public
transportation, visit with friends, do household chores, or
complete the sixth grade may not be used to invalidate an
otherwise valid IQ score, see Brown v. Secretary of HHS, 948 F.2d
268 (6th Cir. 1991)(and see also Dragon v. Com’r of Social
Security, 2012 WL 987758 (6th Cir. March 26, 2012)), this case
involves only a questionable IQ score within the Listing range
derived when plaintiff was eleven, and more recent scores that do
not satisfy the Listing.

Under all of the circumstances, the ALJ

had a reasonable basis for his finding that the factors necessary
to prove disability under Section 12.05(C) were not present here.
Plaintiff’s second assignment of error takes issue with the
ALJ’s rejection of the opinions of the treating source opinions,
particularly Dr. Griffith’s 2006 and 2007 evaluations, and, to a
lesser extent, the opinions expressed by Dr. Rahn and by Mr.
Cingle.

He argues that the ALJ’s statement that the functional

restrictions incorporated into the hypothetical question posed to
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the vocational expert actually tracked Dr. Griffith’s findings is
not accurate, and that had her actual conclusions been
incorporated into the ALJ’s residual functional capacity
assessment, it is likely that plaintiff would have been found
disabled.

To the extent that the ALJ discounted, rather than

accepted, Dr. Griffith’s findings, plaintiff contends that the
record does not contain evidence sufficient to undermine the
validity of her conclusions.

He also argues that the ALJ did not

cite to the various factors set forth in 20 C.F.R. §404.1527(d)
when discounting Dr. Griffith’s opinion, and that he did not
therefore adequately articulate his reasoning process.

He makes

much the same argument about the way in which Dr. Rahn’s opinion
was considered.
A treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

Lashley

v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983);
Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981).

A

summary by an attending physician made over a period of time
need not be accompanied by a description of the specific
tests in order to be regarded as credible and substantial.
Bull v. Comm’r of Social Security, 629 F.Supp. 2d 768, 780-81
(S.D. Ohio 2008), citing Cornett v. Califano, No. C-1-78-433
(S.D. Ohio Feb. 7, 1979).
A physician's statement that plaintiff is disabled is not
determinative of the ultimate issue.

The weight given

such a statement depends on whether it is supported by
sufficient medical data and is consistent with other evidence
in the record.

20 C.F.R. §404.1527; Harris v. Heckler, 756 F.2d

431 (6th Cir. 1985).

In evaluating a treating physician’s

opinion, the Commissioner may consider the extent to which that
physician’s own objective findings support or contradict that
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opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v.

Secretary of HHS, 901 F.2d 1306 (6th Cir. 1990).

The

Commissioner may also evaluate other objective medical evidence,
including the results of tests or examinations performed by nontreating medical sources, and may consider the claimant’s
activities of daily living.

Cutlip v. Secretary of HHS, 25 F.3d

284 (6th Cir. 1994).
If not contradicted by any substantial evidence, a treating
physician's medical opinions and diagnoses are afforded complete
deference.

Harris, 756 F.2d at 435.

The Commissioner may have

expertise in some matters, but cannot supplant the medical
expert.

Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963).

The "treating physician" rule does not apply to a one-time
examining medical provider, and the same weight need not be given
to such an opinion even if it favors the claimant.

Barker v.

Shalala, 40 F.3d 789 (6th Cir. 1994).
If the Commissioner does not give controlling weight to the
opinion of a treating physician, the Commissioner is required to
explain what weight has been assigned to that opinion, and why.
Failure to articulate the reason for discounting such an opinion
with a level of specificity that allows the claimant to
understand why his physician’s views have not been accepted, and
to allow the Court to review the ALJ’s bases for making that
decision, is almost always reversible error.

Rogers v. Comm’r of

Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Wilson v.
Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004).
Here, plaintiff is correct that the ALJ purported to
incorporate a number of Dr. Griffith’s findings into his residual
functional capacity determination.

It is often true that if a

claimant has poor or no ability to perform certain work-related
functions, that person will not be employable.

However, the

specific areas in which Dr. Griffith believed plaintiff had no
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real ability to function were areas which are not necessarily
required in every employment situation.

Examples of such matters

include the ability to work in close proximity to others or to
deal with the public and with co-workers.

The hypothetical

question posed to the vocational expert asked if jobs exist for
individuals who are absolutely precluded from engaging in such
activities, and the expert identified jobs not requiring them.
Thus, to some extent, the ALJ accepted, rather than rejected or
discounted, Dr. Griffith’s views.
But it is also clear that some of Dr. Griffith’s views - and
similar views expressed by Dr. Rahn - were rejected, as, for
example, her opinion that plaintiff could not complete a workday
or workweek without significant interruption from
psychologically-based symptoms.

The question then becomes

whether the record supports the decision not to give these views
controlling weight, and whether the ALJ adequately explained why
he did not do so.
The ALJ did explain, in sufficient detail, that he did not
accept the totality of Dr. Griffith’s diagnoses, and that finding
is supported by the absence of any recent treatment records or
reported symptoms of matters like ADHD or social phobia.
34.

See Tr.

He then concluded that because these diagnoses were not

accepted, Dr. Griffith had likely overstated the degree of
plaintiff’s limitations.

The ALJ also noted an inconsistency

between Dr. Griffith’s findings and plaintiff’s own statement
that he was able to tolerate work activity, but that his
employers simply did not believe he was performing well enough to
justify his retention.

That inconsistency does appear in the

record and it could have led a reasonable person to discount Dr.
Griffith’s more extreme findings to some degree.

The ALJ also

devoted a good deal of discussion to why he did not accept Dr.
Rahn’s conclusions, including the fact that Dr. Rahn also stated
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plaintiff could not do things that plaintiff himself appeared
capable of doing and actually did, and that there was no evidence
that plaintiff had needed a job coach in some of his work
situations.

Finally, the ALJ described plaintiff’s various

activities of daily living in some detail (Tr. 36) and found
those activities indicative of a sedentary lifestyle dictated
more by choice than by plaintiff’s documented impairments, and
the ALJ also relied on the state agency reviewer’s assessment,
which was consistent with the ability to work with restrictions.
All in all, the Court finds that the ALJ reached a conclusion
that is supported by evidence of record and explained his
reasoning process well enough to satisfy the mandate of
§404.1527(d), as explained in Wilson and Rogers.

Therefore, his

second claim provides no basis for overturning the administrative
decision.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be overruled and that the Court
enter judgment in favor of the Commissioner and dismiss this
case.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.

Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence
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or may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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