Dunlevy v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATION that the decision of the Commissioner be reversed re 3 Complaint filed by Derrick D. Dunlevy. Objections to R&R due by 8/16/2012. Signed by Magistrate Judge Norah McCann King on 7/30/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DERRICK D. DUNLEVY,
Plaintiff,
vs.

Civil Action 2:11-CV-863
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 application for disabled
adult child’s insurance benefits. This matter is now before the
Court

on

plaintiff’s

Commissioner’s

Statement

Memorandum

in

of

Errors,

Opposition,

Doc.

No.

12,

the

Doc.

No.

18

and

plaintiff’s Reply, Doc. No. 21.
Plaintiff
Income

[“SSI”],

attention

was

awarded

beginning

at

deficit

disorder,

child’s

age

7,

in

attention

disorder and oppositional/defiant disorder.

Supplemental
connection
deficit

Security
with

his

hyperactivity

PageID 179. After the

death of his father in 2005, plaintiff received survivor’s child’s
insurance benefits from December 2005 to June 2008. PageID 173. In
June 2007, plaintiff’s SSI payments were suspended because of the
excess income attributable to his receipt of child’s insurance
benefits. See 20 C.F.R. § 416.1335. PageID 170-75.

When plaintiff

reached the age of 18 in June 2008, he no longer qualified for
child’s insurance benefits. See 20 C.F.R. §404.352(b)(3); see also
PageID 173.

Acting

through

his

mother,

plaintiff

filed

his

application for child’s insurance benefits in April 2010, claiming
benefits as a disabled adult child under his father’s Social
Security account. PageID 223-25. Plaintiff alleges that he is
disabled as a result of attention deficit hyperactivity disorder
(“ADHD”),

bipolar

personality

disorder,

disorder.

PageID

depression,
198.

The

schizophrenia

application

was

and

denied

initially and upon reconsideration and plaintiff requested a de
novo hearing before an administrative law judge.
An administrative hearing was held on December 19, 2009,
at which plaintiff, represented by a non-attorney representative,
appeared and testified, as did his mother and Casey B. Vass, who
testified as a vocational expert. In a decision dated February 26,
2010, the administrative law judge found that plaintiff has the
residual functional capacity for a reduced range of light work that
permits the performance of work that exists in significant numbers
in the national economy and that plaintiff is therefore not
disabled within the meaning of the Social Security Act. PageID 6980. That decision became the final decision of the Commissioner of
Social Security when the Appeals Council declined review on July
25, 2011. PageID 59-62.
II.
Testimony
Plaintiff was 19 years of age when the administrative law
judge issued his decision and 7 years of age on the alleged
disability

onset

date.

Plaintiff

is

a

high

school

graduate,

although his school records indicate that he received special
education services “as a student with an Emotional Disturbance.”
PageID 226.
Plaintiff testified at the administrative hearing that he
lives at home with his mother and his twin sisters. PageID 92. He
does not have a driver’s license and does not drive. PageID 92-93.
2

He cannot read a newspaper.

PageID 106. He has never worked. Id.

Plaintiff has anger issues: “I act out and break stuff
and I argue and fight with my mom and my grandma and I end up like
breaking stuff in my house sometimes and fight with my sisters. I
can’t get along.” PageID 95.

He was once arrested for kicking a

teacher and was placed in a detention center for one year.1
109.

PageID

He was frustrated by his inability to complete school

assignments and by the fact that other students made fun of him.
PageID 109-10.
door

and

He has punched holes in the walls and has broken a

knickknacks.

Id.

His

mother

has

called

the

police,

although not within recent years. PageID 95-96. Plaintiff also
experiences panic attacks two to three times a month. PageID 96.
His mood swings are frequent. PageID 97. He prefers to be by
himself.

PageID 96. His medications help “a little bit.”

PageID

108.
Plaintiff can care for his personal needs. PageID 98. He
does not sleep well at night. Id. He naps throughout the day.
PageID 103-04.

On a typical day, plaintiff watches television and

stays in his room.

PageID 99.

He helps his mother pick up around

the house. Id. Although plaintiff testified that he does not “go
out of the house,” PageID 99, he also testified that he went deer
hunting the prior hunting season, id., and went fishing about 30
days during the prior fishing season. PageID 105. He gets long
“really well” with his grandfather and enjoys spending time with
him. PageID 100.

He has no friends.

PageID 101.

He once tried to get a job, but was unsuccessful because
he does not like to be around people. PageID 101.
Plaintiff’s mother, Melinda Lou Dunlevy, also testified
at the administrative hearing. PageID 113-23.

According to Ms.

Dunlevy, plaintiff spends his days sitting in his room listening to
1

Plaintiff’s mother testified that plaintiff was detained for three (3)
months. PageID 118.

3

the radio. PageID 113. He does not interact with others, even at
family gatherings.

PageID 115.

When her son “throws his fits,” he

destroys everything. PageID 114.

His anger is easily triggered.

Id. She does not believe that plaintiff can control his anger.
PageID 116. She does not believe that his medications help. PageID
116.
Casey B. Vass, the vocational expert, was asked to assume
a claimant with plaintiff’s vocational profile and the residual
functional capacity for light exertion limited to repetitive tasks
not involving public contact or pressure to perform rapidly and
without

strict

interaction.

production

PageID

124.

deadlines
In

and

response,

only

the

limited

social

vocational

expert

testified that such a claimant could perform more than 500,000
light jobs in the national economy, including such jobs as laundry
worker, hand packer and cleaner.

PageID 124-25.

III.
The Medical Evidence of Record2
In

June

2002,

when

plaintiff

was

11

years

old,

he

presented to the Cleveland Clinic emergency room with his mother
for

apparent

suicidal

ideation

and

visual

and

auditory

hallucinations. PageID 258-64. He was “visibly quite angry.” PageID
258.

He was admitted for observation. PageID 259, 700-67.

history

of

psychiatric

treatment

was

noted,

including

A
a

prescription for Ritalin, since the age of 3. PageID 708.

2

The record contains additional medical evidence including more records
from the 2002 Cleveland Clinic admission and treatment records from the
Worthington Center covering a period after the administrative law judge issued
his decision, including an August 2010 opinion from Dr. Matisi. PageID 70099, and a letter from plaintiff’s mother. PageID 800-12. That evidence was not
before the administrative law judge but was submitted to the Appeals Council.
However, that evidence is not a part of the record for purposes of substantial
evidence review of the administrative law judge’s decision. See Cline v.
Commissioner of Social Security, 96 F.3d 146, 148 (6th Cir. 1996).

4

Plaintiff received mental health treatment from TriCounty Mental Health and Counseling Services from January 2003 to
May 2008.
included

PageID 320-62, 368-401, 434-96. Plaintiff’s diagnoses
conduct

disorder,

bi-polar

disorder,

cyclothymia

and

oppositional defiant disorder. Persistent problems at home and at
school were reported.

See, e.g., PageID 340, 377, 388.

placed in an alternative school.

He was

See PageID 516-28, 548-670, 673-

99.
Since

2005,

Plaintiff

has

treated

with

psychiatrist

Catherine Matisi, D.O., who diagnosed bipolar affective disorder I
mixed. PageID 529-31. A May 2007 mental status examination showed
average

eye

contact,

mild

agitation,

no

delusions

or

hallucinations, and no aggressive behavior. PageID 529. Plaintiff’s
mood was depressed, anxious, angry and irritable. His affect was
labile. PageID 530.
In October 2007, when plaintiff was 17 years old, he was
hospitalized at the Ohio Hospital for Psychiatry for eight days
following reports of suicidal ideation. PageID 267-315. At the
initial assessment, plaintiff’s memory was intact, he was oriented
and

had

adequate

intellectual

functioning.

His

affect

was

appropriate, his mood was anxious and irritable and his judgment
was poor. His thought process was coherent and content was normal.
Visual and auditory hallucinations were reported. Plaintiff voiced
numerous somatic complaints. Upon discharge, plaintiff was no
longer

voicing

suicidal

or

homicidal

ideation.

Plaintiff

was

discharged with diagnoses of bipolar disorder, NOS, history of ADHD
and intermittent explosive disorder. PageID 268. He was assigned a
Global

Assessment

of

Functioning

(“GAF”)

of

60.

Plaintiff’s

medication was adjusted and outpatient treatment was recommended.
Id.
In July 2008, Dr. Matisi completed a daily activities
questionnaire in which she reported that plaintiff’s mother makes
5

few demands on him. PageID 363-64. Plaintiff had few friends and
did little outside the home; he spent his days watching television,
playing video games and listening to music.

Id.

Dr. Matisi also

completed a mental status questionnaire. PageID 365-67. Dr. Matisi
found no gross evidence of a thought disorder but evidence of mild
paranoia. According to Dr. Matisi, plaintiff’s history of poor
compliance with treatment and limited commitment to improvement,
combined with his psychological impairments

and the fact that his

mother imposed few demands at home, “have created poor tolerance
for stress or other demands to conform behavior.”
In
plaintiff’s

November

2008,

after

he

reached

treatment

with

Dr.

Matisi

was

PageID 366.
the

age

of

transferred

different clinic, the Worthington Center. PageID 508-12.
Matisi

noted

that

concentration,

plaintiff

focus,

had

problems

irritability,

anger,

with

18,

to

a

Dr.

attention,

lability

and

impulsivity. PageID 446. Progress notes from July to December 2009
indicated good progress with mood and focus. PageID 497-507.
In a December 2009 assessment of plaintiff’s mental
functioning, Dr. Matisi reported that plaintiff had “poor” or “no”
ability in the following work related areas: following work rules,
relating to coworkers, dealing with the public, using judgment,
interacting
functioning

with

supervisors,

independently,

dealing

or

with

maintaining

work

stresses,

attention

and

concentration. According to Dr. Matisi, plaintiff’s abilities to
relate predictably in social situations and to maintain personal
appearance were “fair,” but plaintiff had no useful ability to
behave in an emotionally stable manner. Dr. Matisi concluded that
plaintiff is “unemployable.” PageID 430-32.
In August 2008, Gary S. Sarver, Ph.D., performed a
consultative psychological evaluation, which included testing and
a diagnostic interview, at the request of the state agency. PageID
402-09. Dr. Sarver noted that plaintiff’s independent living skills
6

appeared to be fair, although he depended on his mother to take
care of him. PageID 402. Plaintiff reported recent weight loss,
diminished energy, depression, and anger. Dr. Sarver characterized
plaintiff as pleasant, cooperative, interactive, and responsive to
the demands of the test situation.
plaintiff achieved

PageID 403-04.

On testing,

a verbal IQ score of 79, a performance IQ score

of 77, and a full scale IQ score of 76,

PageID 406, results that

were “considerably below” the results of testing in 2002. Dr.
Sarver attributed that discrepancy to the use of two different
testing protocols (WISC-3 versus WAIS-III) and felt that the
current results were “an accurate reflection of how he is currently
functioning.”

PageID 406. Dr. Sarver reported that plaintiff’s

abstract reasoning, common sense and judgment were within the
borderline

range.

understanding

of

Plaintiff's
his

insight

intrapsychic

was

dynamics

poor
or

with
the

little

emotional

complexities of interpersonal relationships. PageID 405.

Dr.

Sarver reported that plaintiff’s attention, concentration, and
persistence were appropriate. PageID 404. Dr. Sarver noted that
plaintiff had no behavioral manifestation of the non-dominant
parietal lobe attention deficits associated with ADHD. PageID 407.
Dr. Sarver diagnosed an adjustment disorder, with depression and
anxiety, and a personality disorder. Id. Plaintiff was assigned a
GAF score of 51. Id.

According to Dr. Sarver, plaintiff could

understand and follow simple one- and two-step job instructions and
could perform simple, repetitive tasks. Plaintiff was moderately
limited in his ability to relate to others and to manage work
stresses.

PageID

408.

Plaintiff

would

likely

have

difficulty

organizing, structuring and working towards goals and would likely
have difficulty containing his anger, managing his frustration and
controlling his impulses. He would likely depend on other people
and/or situations to structure life for him.

7

Id.

State

agency

psychologist

Bruce

reviewed the file in September 2008.

Goldsmith,

Ph.D.,

PageID 410-27. According to

Dr. Goldsmith, plaintiff was moderately limited in his ability to
understand, remember and carry out detailed instructions, to work
in

coordination

with

or

proximity

to

others

without

being

distracted by them, to complete a normal workday and workweek
without

interruptions

from

psychologically

based

symptoms,

to

perform at a consistent pace without an unreasonable number and
length of rest periods, to interact appropriately with the general
public,

to

accept

instructions

and

respond

appropriately

to

criticism from supervisors, to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes, to
respond appropriately to changes in the work setting and to set
realistic goals or make plans independently of others. PageID
424-25. Based on plaintiff’s clinical interview and Dr. Sarver’s
findings, Dr. Goldsmith concluded plaintiff retained the ability to
understand, recall and follow simple instructions in a workplace
that did not present pressure to perform rapidly or require lot of
social interaction or strict production deadlines. PageID 426. Dr.
Goldsmith also completed a “Psychiatric Review Technique” form on
which

he

opined

that

plaintiff

had

moderate

restrictions

in

activities of daily living, in maintaining social functioning and
in maintaining concentration, persistence, or pace. PageID 420. In
January 2009, state agency physician David Demuth, M.D., affirmed
Dr. Goldsmith’s assessment. PageID 428-29.

IV.
EDUCATIONAL RECORDS
In January 2003, plaintiff

withdrew from Brunswick City

Schools and transferred to the Athens City Schools, where he was
assigned to classes for students with a severe behavioral handicap
8

[“SBH”]. PageID 382. Plaintiff remained in an alternative school
for SBH students until his graduation in 2008. PageID 791.

In

2006, plaintiff was suspended from school on a number of occasions.
He was also expelled from school, charged with unruliness and
placed on probation. See PageID 340, 349, 350, 354, 399. The
following fall, plaintiff was again suspended, and continued on
probation to compel him to behave and to take his medications as
prescribed. PageID 386.
V.
Administrative Decision
In his decision, the administrative law judge found that
plaintiff had not attained age 22 as of August 1, 1997, his alleged
disability onset date.3 PageID 71. The administrative law judge
characterized

plaintiff’s

intellectual

functioning,

severe

impairments

affective

explosive disorder and obesity.

Id.

disorder,

as

borderline
intermittent

The administrative law judge

also determined that plaintiff does not have an impairment or
combination of impairments that meets or medically equals a listed
impairment.

Specifically, the administrative law judge determined

that plaintiff’s mental impairments neither met nor medically
equaled the “B” criteria of Listings 12.04, 12.05 and 12.08. PageID
72. The administrative law judge also found that the record failed
to document that the “C” criteria of Listing 12.04 had been met.
PageID 72-73.
The administrative law judge found that, from a mental
standpoint,4 plaintiff has the residual functional capacity to

3

For purposes of child's insurance benefits on the basis of a
disability, a claimant over 18 years of age must establish that he became
disabled prior to the age of 22. 20 C.F.R. § 404.350(a)(5).
4

Plaintiff does not challenge the administrative law judge’s finding
that plaintiff has the exertional residual functional capacity for light work.

9

perform routine repetitive tasks that require no public contact or
pressure to perform rapidly and which involves only limited social
interaction and no strict production deadlines. PageID 74. The
administrative law judge based this finding on the reports of the
consultative examiner, Dr. Sarver, and the reviewing psychologist,
Dr. Goldsmith, to whose opinions the administrative law judge
accorded “great weight” because they are consistent with and well
supported by the record as a whole. PageID 78. The administrative
law judge gave “no weigh[t]” to the opinion of plaintiff’s treating
psychiatrist, Dr. Matisi, “because it is inconsistent with the
record from Worthington Center, as well as the record as a whole.”
PageID 79.
Relying
administrative

law

on

the

judge

vocational
found

that

expert’s

testimony,

plaintiff

is

capable

the
of

performing a significant number of jobs in the national economy.
PageID 79.

Accordingly, the administrative law judge concluded

that plaintiff is not disabled within the meaning of the Social
Act.

PageID 80.
IV.
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). 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. See Buxton v. Halter, 246 F.3d
762, 772 (6th Cir. 2001); 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. See Brainard v. Secretary of Health &
10

Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984).
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, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion. Longworth v. Comm’r Soc. Sec.,
402 F.3d 591, 595 (6th Cir. 2005).
In his Statement of Errors, plaintiff contends, first,
that the administrative law judge improperly ignored the earlier
finding of disability made in connection with plaintiff’s award of
SSI benefits. As the Commissioner notes in the Memorandum in
Opposition, however, the standards governing the award of child’s
SSI benefits and the standards governing the award of child’s
insurance benefits are different. Compare 20 C.F.R. § 416.924 with
20 C.F.R. § 416.987.

The fact that plaintiff was awarded child’s

SSI benefits is simply not determinative of his application for
child’s insurance benefits.

Moreover, and contrary to plaintiff’s

characterization of the record, the administrative law judge did
not ignore evidence of plaintiff’s mental impairments prior to
reaching the age of 18.

See, e.g., PageID 76 (“The record begins

in October 2002 . . .”).

Plaintiff’s objection in this regard is

without merit.
Plaintiff also argues that the administrative law judge
mischaracterized
disability.

and

ignored

material

evidence

of

plaintiff’s

Specifically, plaintiff contends that, given the

totality of the record, the administrative law judge made findings
of fact unsupported by substantial evidence in the record. Although
the Commissioner of Social Security must consider the record as a
whole and provide a statement of evidence and the reasons on which
11

the

decision

is

based,

see

42

U.S.C.

§

405(b)(1),

the

administrative law judge need not explicitly address every piece of
evidence

in

the

record.

Kornecky

v.

Commissioner

of

Social

Security, 167 Fed. Appx. 496, 507-08 (6th Cir. 2006)(“An ALJ can
consider all the evidence without directly addressing in his
written

decision

every

piece

of

evidence

submitted

by

a

party”)(internal quotation marks omitted); Heston v. Commissioner
of Social Security, 245 F.3d 528, 534-35 (6th Cir. 2001).

The

administrative decision in this case adequately demonstrates that
the administrative law judge considered the entire record.

The

fact that plaintiff disagrees with the Commissioner’s evaluation of
the evidence does not alone constitute grounds for rejecting that
evaluation.
Plaintiff contends that the administrative law judge
erred

by

rejecting

the

opinions

of

the

plaintiff’s

treating

psychiatrist, Dr. Matisi, without good reason. The opinion of a
treating provider must be given controlling weight if that opinion
is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and is “not inconsistent with the other
substantial

evidence

in

[the]

case

record.”

20

C.F.R.

§

416.927(d)(2). Even if the opinion of a treating provider is not
entitled to controlling weight, an administrative law judge is
nevertheless required to determine how much weight the opinion is
entitled to by considering such factors as the length, nature and
extent of the treatment relationship, the frequency of examination,
the medical specialty of the treating physician, the extent to
which the opinion is supported by the evidence, and the consistency
of

the

opinion

with

the

record

as

a

whole.

20

C.F.R.

§

416.927(d)(2)-(6); Blakley v. Commissioner of Social Security, 581
F.3d 399, 406 (6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 544 (6th Cir. 2004). Moreover, an administrative law judge must

provide “good reasons” for discounting the opinion of a treating
12

provider, 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 v. Commissioner of Social Sec., 486 F.3d 234, 242
(6th Cir. 2007), citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at
*5.
As noted supra, the administrative law judge accorded no
weight to Dr. Matisi’s opinion of disability, simply characterizing
that opinion as “inconsistent with the record from Worthington
Center, as well as the record as a whole.”

PageID 79.

This

statement simply does not provide “good reasons” for discounting
Dr. Matisi’s opinion, nor does it provide reasons “sufficiently
specific to make clear to any subsequent reviewers” the reasons for
according “no weigh[t]” to that opinion.

Rogers, 486 F.3d at 242.

The Court therefore concludes that the matter must be remanded for
further consideration of Dr. Matisi’s opinion of disability.5
V. CONCLUSION

It is therefore RECOMMENDED that the decision of the
Commissioner be reversed and that the action be remanded for
further consideration of the opinions of plaintiff’s treating
psychiatrist.
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

5

In his Reply, plaintiff also urges remand, under Sentence 6 of 42
U.S.C. § 405(g) for consideration of new and material evidence. Reply, p. 9
n.6. On remand, plaintiff remains free to address any new and material
evidence before the Commissioner.

13

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 30, 2012

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

14