Smith v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS that 14 Statement of Specific Errors be overruled & judgment be entered in favor of the Commissioner. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 6/6/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gregory A. Smith,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-897

:
Commissioner of Social Security,
Defendant.

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Gregory A. Smith, 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.

Those applications were filed on

June 5, 2008 (disability) and May 28, 2008 (SSI) and alleged that
plaintiff became disabled on April 1, 2004.
After initial administrative denials of his claim, plaintiff
was given a hearing before an Administrative Law Judge on May 4,
2010.

In a decision dated June 21, 2010, the ALJ denied

benefits.

That became the Commissioner’s final decision on

August 5, 2011, when the Appeals Council denied review.
After plaintiff filed this case, the Commissioner filed the
administrative record on December 12, 2011.

Plaintiff filed his

statement of specific errors on March 20, 2012.
filed a response on April 27, 2012.

The Commissioner

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 is found
at pages 35 through 45 of the record.

Plaintiff, who was 55

years old at the time of the hearing and is a high school
graduate, testified as follows.

After graduating from high school, plaintiff began working
in a coal mine, but the mine shut down in 1979.

After that, he

worked variously as a carpenter, custodian, and meat cutter.

He

went back to the coal mines in 2001 and worked on and off for
several years, but had difficulty due to nightmares about the job
after another worker was killed.

He stopped working in 2004 when

he was sent to prison.
At the time of the hearing, plaintiff was seeing physicians
at the Ford Street Clinic.

He was also seeing a counselor at

Jefferson Behavioral Health.

He received counseling for

depression and anxiety as well as post-traumatic stress disorder.
His major problem is just being around people.

He experiences

difficulty concentrating and becomes nervous.

He is able to go

to the grocery store, however.
In a typical day, plaintiff would make his wife’s breakfast,
nap, do some chores, and cook dinner.

He has some physical

problems including arthritis and breathing difficulties, but the
primary issue with working is due to his mental problems.
III.

The Medical Records

The medical records in this case are found beginning on page
214 of the administrative record.

The pertinent records - that

is, those that relate to plaintiff’s psychological impairments can be summarized as follows.
Plaintiff began seeing a social worker, Mr. Bousquet, on
December 5, 2001.

Notes of sessions from 2001 through 2002

appear in the record.

They reflect a diagnosis of PTSD and show

that plaintiff was taking medication.

In an accompanying cover

sheet, Mr. Bousquet said he had no idea how plaintiff’s disorder
was affecting him in 2008.

(Tr. 214-34).

When plaintiff went to

prison in 2004, a mental health screening was done, and he was
not viewed as needing any mental health services.

(Tr. 235).

On June 20, 2008, plaintiff’s counselor, Mr. Taylor, filled
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out a questionnaire indicating that he had first seen plaintiff
for intake purposes on March 4, 2008, and had last seen him for
counseling on June 19, 2008.

Plaintiff exhibited a depressed

mood and had symptoms of PTSD.
others.

He was quite suspicious of

Mr. Taylor noted some mild to moderate problems with

concentration.
chronic PTSD.

Plaintiff was diagnosed with major depression and
He did not have any cognitive problems but might

have some problems completing tasks in a timely fashion.

He also

had a social impairment which affected his ability to work with
others, but there was a possibility that he could work alone.
(Tr. 301-03).
Mr. Bousquet subsequently saw plaintiff for purposes of a
disability evaluation.

In a report dated September 2, 2008, he

stated that plaintiff had been in counseling for the past four
months and was depressed all the time.

Plaintiff seemed anxious

during the evaluation and his mood was depressed and sad.

He

reported a loss of interest in daily activities and described
mood swings as well as trust issues.
were in the average range.

His cognitive abilities

He described his daily activities as

doing some household chores, watching televison, and occasionally
visiting relatives or going fishing.

Mr. Bousquet also diagnosed

a major depressive disorder, PTSD, and a personality disorder
with dependent, avoidant and borderline features.

He rated

plaintiff’s GAF at 50 and concluded that plaintiff had a moderate
limitation in his ability to relate to others, no impairment in
his ability to understand, follow and remember simple
instructions or directions, a moderate impairment in his ability
to maintain adequate persistence and pace, and a moderate
impairment in his ability to deal with the stress and pressure of
everyday work activity.

(Tr. 322-28).

A state agency reviewer,

Dr. Lewin, reached similar conclusions, noting that plaintiff
“would be able to work at a steady pace to sustain simple tasks
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and can relate[] at least superficially with others.”
46).

(Tr. 329-

That evaluation was affirmed by another state agency

reviewer, Dr. Tishler, who also observed that plaintiff had not
been fully compliant with counseling appointments and was
completing various tasks such as painting a house and barn door
without reporting flashbacks.

(Tr. 362).

On January 20, 2009, Mr. Taylor provided a treatment
summary.

His summary showed little change in plaintiff’s mood

but some increase in productivity.

He remained suspicious of

others and continued to report flashbacks.
“guarded despite treatment.”

(Tr. 363).

His prognosis was

In a subsequent letter,

Mr. Taylor repeated many of these comments and noted some
difficulty maintaining concentration, although plaintiff’s memory
was not impaired.

His diagnoses were the same, and plaintiff’s

GAF was rated at 58.

(Tr. 373-74).

An attached mental capacity

assessment form showed a marked limitation in the ability to work
with others or relate to the general public, and also a marked
inability to complete a workday or work week without interruption
from psychologically-based symptoms.

(Tr. 376).

completed a somewhat similar form in April, 2010.
IV.

Mr. Taylor
(Tr. 420-21).

The Vocational Testimony

Mr. Bell, a vocational expert, also testified at the
administrative hearing.

His testimony begins at page 45.

He

characterized plaintiff’s past jobs as ranging from medium to
heavy, and from unskilled to semi-skilled.
Mr. Bell was asked some questions about a hypothetical
person who was 55 years old and had plaintiff’s education and
work experience.

Additionally, that person could work at all

exertional levels, but could work only in a low-stress
environment with no production line or assembly-type pace and
with no independent decision-making required.

Also, the person

could do only unskilled work involving only routine and
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repetitive instructions and tasks, and could not interact with
the general public at all, and only minimally with co-workers and
supervisors.

Mr. Bell testified that such a person could do a

number of heavy, medium and light jobs such as kitchen attendant
or office cleaner.

However, if the person were off task 20

percent of the time, no jobs would be available, and missing more
than two days of work per month would also be inconsistent with
sustaining employment.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 9
through 24 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
December 31, 2008.

Next, he found that plaintiff had not engaged

in substantial gainful activity from his alleged onset date of
April 1, 2004 through the date of the decision.

As far as

plaintiff’s impairments are concerned, the ALJ found that
plaintiff had severe impairments including major depressive
disorder, posttraumatic stress disorder, and personality disorder
with avoidant and antisocial traits.

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 a full range of work at all exertional
levels, but that he had nonexertional limitations including the
need to work in a low stress environment with no production line
or assembly line type of pace, no independent decision-making
responsibility, no more than unskilled, routine and repetitive
work, no interaction with the general public and no more than
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occasional interaction with coworkers and supervisors.

The ALJ

accepted the vocational expert’s testimony that someone with such
limitations could perform various jobs that existed in
significant numbers in the regional economy, including truck
unloader, kitchen attendant, or office cleaner.

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 the
following issues.

First, plaintiff argues that the ALJ erred in

the weight he assigned to the opinion of plaintiff’s treating
therapist, Mr. Taylor.

Second, plaintiff argues that the ALJ did

not include all of the relevant mental limitations in the
hypothetical question posed to the vocational expert.

The Court

generally reviews the administrative decision of a Social
Security ALJ 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
adequate to support a conclusion'"

Richardson v. Perales, 402

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.
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.'"
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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).
The Court begins its analysis by stating the legal standard
applicable to reviewing an ALJ’s decision not to give controlling
weight to the opinion of a mental health counselor who is neither
a psychiatrist or a psychologist.

As explained in Potter v.

Astrue, 2010 WL 2679754 (S.D. Ohio June 2, 2010), adopted and
affirmed 2010 WL 2679753 (S.D. Ohio July 6, 2010), although such
a counselor is not considered an “acceptable medical source,” and
therefore not subject to the treating physician rule stated in 20
C.F.R. §040.1527(d), a treating counselor’s opinion cannot be
rejected arbitrarily.

Rather, Social Security Ruling 06-03p

provides that the opinions of such sources “are important” and
must be evaluated “on key issues such as impairment severity and
functional effects, along with the other evidence in the file.”
Consequently, as in Potter, if it is not clear how the ALJ
applied SSR 06-03p or arrived at a residual functional capacity
finding, a remand may be in order, and the same result may be
required if an ALJ’s decision does not set forth “some basis for
why he was rejecting the opinion” of a non-medical source.

Cruse

v. Comm’r of Social Security, 502 F.3d 532, 541 (6th Cir. 2007).
It is important to keep in mind, however, that there is no
requirement, as there is for opinions from treating physicians,
that the ALJ articulate good reasons for his or her decision
assigning specific weight to the opinion of such a source.

See,

e.g., Mulkey v. Comm’r of Social Security, 2011 WL 4528485, *6
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(W.D. Mich. June 14, 2011), adopted and affirmed 2011 WL 4528479
(W.D. Mich. Sept. 29, 2011)(“[b]ecause [claimant’s therapist] is
not an acceptable medical source, the ALJ was not required to
provide good reasons for the weight given to her opinions under
§§ 404.1527(d)(2), 416.927(d)(2)”).
The ALJ’s decision in this case says the following about Mr.
Taylor’s evaluations of the severity of plaintiff’s mental
impairments.

After reciting in comprehensive detail the

substance of each visit between plaintiff and Mr. Taylor,
including plaintiff’s description of his activities and Mr.
Taylor’s evaluations of plaintiff’s abilities, the ALJ first
noted that Mr. Taylor’s report that plaintiff’s GAF was 58
indicated no more than moderate symptoms.

Next, he stated that

Mr. Taylor’s opinion as to various marked impairments was not
consistent with the evaluation done by Mr. Bousquet or to the
record in its entirety.

He also noted inconsistencies between

Mr. Taylor’s opinions and his treatment notes, but still assigned
some weight to those opinions.

Last, the ALJ stated that his

residual functional capacity finding was based on the opinions of
the state agency physicians.

(Tr. 22-23).

The specific criticisms which plaintiff has leveled at this
portion of the ALJ’s decision are that its rejection of Mr.
Taylor’s views is too cursory, that it omits reference to many of
the factors set forth in SSR 06-03p, and that it incorrectly
relies on isolated comments about plaintiff’s social activities
as evidence of an inconsistency between Mr. Taylor’s treatment
notes and his ultimate conclusions about how severe plaintiff’s
impairments actually are.

As part of his argument, plaintiff

also contends that the opinions which the ALJ adopted in lieu of
Mr. Taylor’s were outdated and did not reflect a continued
worsening of plaintiff’s condition after 2008.
As to this last point, the Commissioner correctly notes that
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several subsequent state agency reviewers examined the initial
assessment done in 2008 and affirmed it.

The Court agrees that

the record shows that the state agency reviewers’ final opinions
were not based on outdated information, so that plaintiff’s
argument on this issue lacks merit.
With respect to the ALJ’s treatment of Mr. Taylor’s views,
it is true that the ALJ did not explicitly mention some of the
factors set forth in SSR 06-03p, but, at the same time, the
administrative decision shows that he was clearly aware of and
took into account matters such as the length of the treating
relationship, the number of counseling sessions, and the way in
which Mr. Taylor supported his evaluation of plaintiff’s mental
capacity.

Each counseling session is detailed in the opinion, so

that it reflects both the length of the treating relationship and
the frequency with which plaintiff sought counseling.

The ALJ

also noted several perceived inconsistencies between Mr. Taylor’s
determination that plaintiff had a number of marked impairments
and his counseling notes, and despite plaintiff’s efforts to
downplay the fact that he appeared to socialize on occasion or to
be comfortable in family settings, those statements do appear in
the record, as does the continued discrepancy between Mr.
Taylor’s assignment of a GAF score which reflects only moderate
impairments and his opinion that plaintiff has many marked
impairments.

Additionally, the various state agency reviewers,

including Mr. Bousquet, who actually examined plaintiff, were
unanimous in their opinion that plaintiff could work despite his
various psychologically-based symptoms.

Given that the ALJ was

not required to articulate his reasons to the same degree as if
Mr. Taylor had been an “acceptable source,” and given the
deference which this Court owes to an ALJ’s resolution of
conflicts in the medical evidence, see Burton v. Halter, 246 F.3d
762 (6th Cir. 2001), the Court finds no error in the way in which
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the ALJ considered and assigned weight to the opinions of Mr.
Taylor, plaintiff’s treating counselor.
The only other error assigned by plaintiff relates to the
hypothetical question posed to the vocational expert.

He asserts

that no portion of the hypothetical question addressed Mr.
Bousquet’s finding that plaintiff was moderately impaired in his
ability to deal with daily work stress or to adapt to changes in
the workplace.

In particular, Mr. Bousquet found that “[t]he

findings suggest that under the conditions of stress and pressure
it is likely that the claimant will experience an exacerbation of
his psychological problems.”

(Tr. 328).

Plaintiff apparently

reads this comment, which followed immediately after the finding
of a moderate impairment in this area, to mean that due to his
PTSD and his prior traumatic work experience, even a moderate
impairment in this area might prevent him from working, and that
the failure specifically to include that concept in the
hypothetical question posed to Mr. Bell (and, by extension, in
the ALJ’s residual functional capacity finding) was error.
Here, however, the ALJ asked Mr. Bell to assume that
plaintiff could work only in a low-stress environment with no
production line or assembly-type pace and with no independent
decision-making required and that plaintiff could do only
unskilled work involving only routine and repetitive instructions
and tasks.

These limitations are reasonably consistent with

someone who has a moderate impairment in the ability to withstand
the stress and pressure of a work environment.

Mr. Bousquet did

not preclude plaintiff from engaging in any work activity, nor
did he characterize plaintiff’s impairment in the area of
workplace stress to be marked.

A fair reading of this portion of

his report is that because workplace stress could cause
plaintiff’s symptoms to worsen, he needed to be in a low-stress
workplace so that the potential for exacerbation of his symptoms
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was kept within manageable limits.

Thus, the Court finds no

error in the way in which the ALJ incorporated this finding into
the hypothetical question posed to Mr. Bell, or into the mental
residual functional capacity finding.

Because Mr. Bell

identified jobs which someone with that limitation, as well as
the other limitations found by the ALJ, could do, and the ALJ
reasonably relied on that testimony in finding that plaintiff
could, despite his psychological impairments, engage in
substantial gainful activity, the Court concludes that there is
no basis upon which this case should be reversed or remanded to
the Commissioner.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the defendant Commissioner of Social
Security.
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
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
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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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