Smith v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Avis Lee Smith. It is RECOMMENDED that the decision of the Commissioner be reversed and that the action be remanded for further consideration of the evidence relating to plantiff's claimed mental impairments. Objections to R&R due by 8/13/2012. Signed by Magistrate Judge Norah McCann King on 7/25/2012. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
AVIS LEE SMITH,
Plaintiff,
vs.

Civil Action 2:11-CV-769
Judge Watson
Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
REPORT AND RECOMMENDATION
I.
Introduction and Background
This is an action instituted under the provisions of 42
U.S.C. §405(g) for review of a final decision of the Commissioner
of Social Security denying plaintiff’s applications for disability
insurance benefits and supplemental security income. This matter is
now before the Court on plaintiff’s Statement of Errors, Doc. No.
12 and the Commissioner’s Memorandum in Opposition, Doc. No. 15.
Plaintiff Avis Lee Smith filed her applications for
benefits on May 15, 2007, alleging that she is disabled as a result
of degenerative joint disease, fluid in both knees, diabetes,
congestive heart failure and “factc” disease (facet arthropathy).1
PAGEID

304.

The

applications

were

denied

initially

and

upon

reconsideration, and plaintiff requested a de novo hearing before
an administrative law judge.
A hearing was held on March 31, 2010, at which plaintiff,
represented by counsel, appeared and testified, as did Steven S.
Rosenthal, who testified as a vocational expert. In a decision

1

Plaintiff originally claimed a disability onset date of December 5,
2005. At the administrative hearing, plaintiff amended that onset date to
April 30, 2007. PAGEID 68.

dated June 30, 2010, the administrative law judge found that,
despite plaintiff’s severe exertional impairments, which preclude
the

performance

of

her

prior

relevant

work,

plaintiff

can

nevertheless perform a significant number of jobs in the national
economy. Accordingly, the administrative law judge concluded that
plaintiff is not disabled within the meaning of the Social Security
Act. PAGEID 120-21. That decision became the final decision of the
Commissioner of Social Security when the Appeals Council declined
review on June 24, 2011. PAGEID 56-60.
Plaintiff

was

53

years

of

age

at

the

time

the

administrative law judge issued his decision. She has a high school
education and past relevant work experience as a phlebotomist and
a medical assistant. PAGEID 90-91.
II.
Plaintiff’s Testimony
Plaintiff suffered a work-related back injury on February
2, 2007. PAGEID 71-72. She has experienced chronic lower back pain
since that time. PAGEID 72. The pain is “nagging,” achy, sometimes
sharp and radiates to the hips. PAGEID 73.

She takes medication,

injections and physical therapy for the pain.

PAGEID

74. No

physician had ever discussed or recommended surgery. Id. She also
has problems with her upper back since 2005 and degenerative joint
disease in both knees. PAGEID 75. Plaintiff also testified that she
suffered a TIA in April 2008.

PAGEID 77.

Since that time, she has

experienced paralysis in two fingers of her left hand, on the left
side of her face and half of her tongue. PAGEID 78. She also
suffers from diabetes, which causes blurriness and dehydration.
PAGEID 79. Plaintiff also testified that she suffers from a bipolar
disorder for which she takes Welbutrin. PAGEID 86. Her medications
cause dizziness and sleepiness. PAGEID 85.
At the time of the hearing, plaintiff was working 28
hours per week as a telemarketer. PAGEID 75. She is able to wash
2

dishes, do laundry, cook, sew and sometimes go to the grocery
store. PAGEID 81-82.
Plaintiff estimated that she can lift ten pounds. Id. She
cannot remain in any one position for long; she must get up three
or four times per night. Id. She must alternate

between sitting

and standing. She must arise from a seated position after 15 or 20
minutes, and she cannot stand longer than 15 or 20 minutes. PAGEID
80. She estimates that she can walk five to ten minutes. PAGEID 81.
III.
The Medical Evidence of Record.
Mary

Ann

Wynd,

M.D.,

a

specialist

in

occupational

medicine, treated plaintiff from February 2007 to December 2007.
PAGEID

413-30, 643-91. Initially, plaintiff reported a fall at

work on February 2, 2007 which resulted in back and head pain which
plaintiff rated at 8 on an analog pain scale.

Plaintiff also

complained of a frontal headache with associated nausea but no
vomiting. She denied radicular symptoms in the upper and lower
extremities. PAGEID 429-30.

On clinical examination, Dr. Wynd

noted tenderness to palpation in the right parietal region of the
head

with

no

palpable

lump

in

that

area,

and

tenderness

to

palpation in the right lumbosacral region. Range of motion in this
area was limited. There was no cervical tenderness and range of
motion was normal. Sensation and strength were normal in the
bilateral upper and lower extremities. Id. Dr. Wynd diagnosed a
concussion without loss of consciousness and a back contusion. Id.
Plaintiff was referred to physical therapy, PAGEID

428, and aqua

therapy. PAGEID 426.
A

March 30, 2007 MRI of the lumbar spine showed a small

synovial cyst at L4-L5 encroaching on the right lateral recess,
probably L5. There was associated facet disease at that level,
greater on the right side.

The radiologist identified

synovial

joint fluid and a minor disc bulge at the L4-L5 level. PAGEID 443.
3

In

June

2007,

Dr.

Wynd

again

noted

tenderness

to

palpation in the lumbosacral region but findings were otherwise
normal. PAGEID# 414-16. Dr. Wynd diagnosed a back contusion with
persistent low back pain. Id.

Dr. Wynd also referred plaintiff to

the OSU Spine Center for evaluation and noted that plaintiff’s pain
“has persisted the past three months and is no longer simply due to
a contusion.” Id. Dr. Wynd limited plaintiff to lifting no more
than 10 pounds and limited her to only occasional standing and
walking and limited bending and twisting. Id.
Plaintiff was examined at the OSU Comprehensive Spine
Center by Ahmad Elsharydah, M.D., who could not find “a clear
etiology of her pain.”

PAGEID

439-42. Dr. Elsharydah noted

complaints of S1 joint pain, much worse on the right than left, and
weakness of the right leg. “Whether or not this is due to the
synovial cyst we have seen on her MRI or just due to her not
wanting to move her legs secondary to her pain in her S1 joint is
unclear. Some of her other pain is likely due to her history of
degenerative joint disease.” PAGEID 441. Plaintiff was scheduled
for spinal injections and an EMG nerve conduction study. Id.
State agency physician Jeffrey Vasiloff, M.D., reviewed
the file in August 2007, PAGEID 571-78, and opined that plaintiff
could lift and/or carry and push and/or pull up to 20 pounds
occasionally and ten pounds frequently; could stand and/or walk
about six hours in an eight-hour workday; could sit about six hours
in an eight-hour workday; could occasionally balance, stoop, kneel,
crouch,

crawl

and

climb

ramps/stairs;

and

could

never

climb

ladders/ropes/scaffolds. Id. Dr. Vasiloff concluded that Dr. Wynd’s
June

2007

exertional

limitations

were

not

supported

by

the

objective evidence. PAGEID# 577. Dr. Vasiloff’s assessment was
affirmed by another state agency physician, Diane Manos, M.D., in
February 2008. PAGEID 713.

4

In February 2008, Dr. Wynd opined that plaintiff could
lift/carry up to 20 pounds occasionally and 10 pounds frequently;
could

frequently

stand/walk;

could

sit

continuously;

could

occasionally bend, twist/turn, reach below the knee, and push/pull;
but could never squat/kneel. PAGEID 694.
Plaintiff suffered a stroke on April 7, 2008 for which
she was hospitalized for three days. PAGEID 919-26.
Plaintiff’s treating family physician from June 2005 to
at least April 2010 has been Holly Cronau, M.D.

PAGEID 465-564,

601-41, 731-74, 778-835, 907-10. Dr. Cronau has treated plaintiff
for

diabetes,

chest

pain,

depression,

smoking

cessation

and

hypertension. Id. On May 13, 2008, Dr. Cronau completed various
disability forms on behalf of plaintiff, PAGEID 715-19, and opined
that plaintiff could stand/walk for no more than two hours, for no
more than fifteen minutes at a time; could lift no more than 10
pounds; and is moderately limited in her ability to push/pull and
bend. PAGEID 716. From a mental standpoint, Dr. Cronau indicated,
inter alia, that plaintiff was markedly impaired in her ability to
perform activities within a schedule, to sustain an ordinary
routine and to work in coordination with or proximity to others and
to complete a normal workday and workweek without interruptions
from psychologically based symptoms. PAGEID 717. According to Dr.
Cronau, plaintiff was unemployable and would remain so for at least
12 months.

Id.

In April 2009, Dr. Cronau reaffirmed those

physical limitations. PAGEID 913.
In

September

2008,

Brad

W.

DeSilva,

M.D.,

an

otolaryngologist, saw plaintiff for complaints of tinnitus and
dizziness. PAGEID 861-64.

According to Dr. DeSilva, plaintiff’s

“vertigo may be an early onset of Meniere's disease. However, her
story is complicated due to her recent stroke.” PAGEID 861.

He

referred plaintiff to vestibular rehabilitation. Id. In September
2009, Dr. DeSilva performed a flexible fiberoptic laryngoscopy for
5

complaints of a globus sensation in plaintiff’s throat, a laryngeal
edema and laryngopharyngeal reflux. PAGEID 951-52. In March 2010,
Dr. Desilva diagnosed conduction hearing loss and chronic rhinitis.
PAGEID 948.
Rajaram J. Karne, M.D., an endocrinologist, saw plaintiff
in August 2008, upon referral by Dr. Cronau, for evaluation and
control of her diabetes.

PAGEID

838-58. Plaintiff

complained of

easy fatigue, night sweats, skin rashes, changes of the hair,
blurriness of vision, loss of smell, nasal obstruction, dental
problems,

sputum,

high

blood

pressure,

changes

in

appetite,

heartburn, polyuria, reduced libido, muscle cramps, joint pain and
swelling,

back

depression.

pain

Dr.

uncontrolled.

and

Karne

stiffness,

diagnosed

headache,

diabetes

dizziness

mellitus,

Type

and
II,

The doctor adjusted plaintiff’s medications. Id.

Plaintiff was seen by a counselor at Hope Counseling
Center on April 15, 2009 for feelings of being overwhelmed with
psychosocial problems, including problems with her seventeen year
old

son

(who

has

mental

impairments),

a

job

injury

and

the

aftermath of a stroke. Plaintiff reported that she had sought work
for two years. She complained of frustration, anger control issues,
impatience and anxiety. Plaintiff was diagnosed with intermittent
explosive disorder, general anxiety disorder and a pain disorder.
Her Global Assessment of Functioning was rated 60. PAGEID 880. The
counselor declined to fill out a form assessment of plaintiff’s
mental
counsel.

residual

functional

capacity

supplied

by

plaintiff’s

PAGEID 881.
IV.
Administrative Decision
In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of osteoarthritis, synovial
cyst of the lumbar spine, facet arthropathy and diabetes. PAGEID
114. The administrative law judge expressly found that plaintiff’s
6

severe impairments did not include depression or severe functional
limitations due to a stroke, reasoning that the objective medical
evidence

did

not

document

such

impairments.

PAGEID

115.

In

considering, and rejecting, plaintiff’s alleged severe mental
impairments, the administrative law judge specifically found:
There is no evidence the claimant was
diagnosed with and/or received any treatment
by a mental health professional prior to 2009
and then it was only well after the clamant
had filed for disability and been initially
denied. It is noteworthy that the claimant is
consistently reported by treating physicians
as not exhibiting any symptoms, mood, or
behavior indicative of anxiety or depression.
Indeed, the claimant is noted as denying that
she does not [sic] have depression, anxiety,
or mood swing.
PAGEID 115 (citations to record omitted).
The
plaintiff’s

administrative
impairments

law

neither

judge
met

went
nor

on

to

equaled

find
a

that

listed

impairment. Id. Relying on the opinions of Dr. Wynd and the state
agency

physicians,

the

administrative

law

judge

found

that

plaintiff has the residual functional capacity to sit for a total
of 6 hours in an 8 hour workday, to stand and walk for a total of
6 hours in an 8 hour workday, to lift 10 pounds frequently and 20
pounds occasionally and to climb stairs, balance, stoop, kneel,
crouch, and crawl occasionally. She cannot climb ladders or ropes
or work around hazardous machinery or unprotected heights. PAGEID
115-19. The administrative law judge “accorded little weight” to
Dr. Cronau’s May 2008 and April 2009 assessments, finding them
“inconsistent with and unsupported by the diagnostic testing and
longitudinal clinical evidence in the evidence of record.” PAGEID
119.
The
residual

administrative

functional

capacity

law

judge

precluded

7

next
the

found

that

performance

this
of

plaintiff’s

past

relevant

work.

PAGEID

120.

Relying

on

the

vocational expert’s testimony, the administrative law judge found
that plaintiff is nevertheless able to perform other work that
exists in significant numbers in the national economy, including
such jobs as information clerk, retail sales and retail marker.
PAGEID 120-21. Accordingly, the administrative law judge concluded
that plaintiff is not disabled within the meaning of the Social
Security Act.

PAGEID 121.2
V.
DISCUSSION

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 more than a scintilla of evidence but less than a preponderance;
it 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

2

After the administrative law judge issued his unfavorable decision,
plaintiff submitted additional materials to the Appeals Council, including
medical records from The OSU Medical Center from August to November 2010;
additional records from Dr. Wynd from 2009 and 2010; a psychological
evaluation report dated July 15, 2010; a home health nurse report dated July
12, 2010; a December 17, 2010 MRI of the lumbar spine report; and treatment
records from the Cleveland Clinic dated March 7, 2011. Page ID 1010-1314.
Evidence submitted to the Appeals Council may not be considered by the
District Court for purposes of substantial evidence review of the
administrative law judge’s decision. Bass v. McMahon, 499 F.3d 506, 512-13
(6th Cir. 2007); see also Cline v. Comm’r of Social Security, 96 F.3d 146, 148
(6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993); Casey v.
Secretary of Health & Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
Moreover, plaintiff does not explain why the evidence that pre-dated the
administrative decision was not submitted to the administrative law judge. In
any event, plaintiff does not ask for remand of the action pursuant to
Sentence 6 of 42 U.S.C. § 405(g) for consideration of new and material
evidence.

8

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. Kirk,
667 F.2d at 536. If the Commissioner’s decision is supported by
substantial evidence, it must be affirmed even if this Court would
decide the 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.
In her Statement of Errors, plaintiff presents four
arguments. She contends, first, that the administrative law judge
erred in rejecting Dr. Cronau’s assessment of plaintiff’s residual
functional capacity and in failing to address the treatment and
reports

of

Plaintiff

plaintiff’s

next

numerous

contends

that

other

the

treating

administrative

physicians.
law

judge

incorrectly assessed plaintiff’s credibility by failing to consider
plaintiff’s

work

history.

Third,

plaintiff

argues

that

the

administrative law judge erred in relying on the testimony of the
vocational expert because the hypothetical posed to the expert –
which did not include any mental impairments – was flawed.
Finally, plaintiff contends the administrative law judge misapplied
the Medical Vocational Guidelines (“Grid”).
This Court concludes that the administrative law judge
mischaracterized the record relating to plaintiff’s mental health
treatment and failed to properly consider – or indeed even mention
–

Dr.

Cronau’s

impairments.

assessment

of

plaintiff’s

diagnosed

mental

The Court therefore concludes that the decision of

the Commissioner cannot be affirmed and that remand of the action
9

is warranted.

Under these circumstances, the Court need not and

does not resolve the other issues raised in plaintiff’s Statement
of Errors.
The administrative law judge considered, and rejected,
Dr. Cronau’s assessment of plaintiff’s physical capacity, relying
instead on the February 2008 assessment of Dr. Wynd, another of
plaintiff’s treating physicians, and on the assessments of the
state agency physicians.

However, the administrative law judge

failed to even consider Dr. Cronau’s May 2008 assessment of
plaintiff’s mental capacity, which indicated that plaintiff was
markedly impaired in a number of work-related areas.

Perhaps this

oversight flowed from the administrative law judge’s finding that
plaintiff does not suffer a severe mental impairment. According to
the administrative law judge, there was no diagnosis or treatment
of any mental impairment by a mental health professional prior to
2009.

PAGEID 115. Even if this were true, however, that fact alone

would

not

excuse

the

administrative

law

judge

from

further

considering whether and to what extent that diagnosis and treatment
affected plaintiff’s ability to engage in work-related activities.
In any event, however, the administrative law judge’s
characterization of the record in this regard is inaccurate. Dr.
Cronau’s treatment records include a diagnosis of depression as far
back as 2005. See, e.g., PAGEID 477-78 ( “Depression - stable
[with] meds”); PAGEID 523 (Wellbutrin prescribed for depression).
Moreover, the administrative law judge was required to consider the
opinions of plaintiff’s treating physician, Dr. Cronau, regarding
her patient’s mental impairments.

Even if the administrative law

judge found that those opinions were not entitled to controlling
weight, he was still obligated to evaluate those opinions by
reference to the standards of 20 C.F.R. §§ 404.1527(d)(2) - (6),
416.927(d)(2) - (6); see Blakley v. Commissioner of Social Security,
581 F.3d 399, 406 (6th Cir. 2009), and to give good reasons for the

10

weight accorded to those opinions.

Rogers v. Commissioner of Social

th

Security, 486 F.3d 234, 242 (6 Cir. 2007), citing Soc. Sec. Rul. 96-2p,
1996 WL 374188, at *5. It is not apparent that the administrative law
judge considered Dr. Cronau’s assessment of plaintiff’s mental
impairments; he certainly did not give good reasons for the weight
assigned to that assessment.
Because the administrative law judge failed to properly
consider the evidence of plaintiff’s claimed mental impairments, the
Court concludes that the matter must be remanded for further
consideration of that evidence.
It is therefore RECOMMENDED that the decision of the
Commissioner be reversed and that the action be remanded to the
Commissioner of Social Security for further consideration of the evidence
relating to plaintiff’s claimed mental impairments.

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. 28 U.S.C. §636(b)(1); F.R. Civ. P.
72(b). 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. 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).
Date: July 25, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
11