Ramsey v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS re 4 Complaint filed by Howard W Ramsey. It is RECOMMENDED that the decision of the Commissioner be reversed and that the action be remanded for further proceedings. Objections to R&R due by 2/15/2013. Signed by Magistrate Judge Norah McCann King on 1/29/2013. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HOWARD W. RAMSEY,
Plaintiff,
vs.

Civil Action 2:11-CV-1123
Judge Sargus
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), 1383, for review of a final decision of the Commissioner of Social
Security

denying

plaintiff’s

applications

for

disability

insurance

benefits and supplemental security income.1 This matter is now before the
Court on plaintiff’s Statement of Errors, Doc. No. 11, the Commissioner’s
Memorandum in Opposition, Doc. No. 16, and plaintiff’s Reply Memorandum,
Doc. No. 17.
Plaintiff Howard W. Ramsey filed his applications for benefits
on October 4, 2007, alleging that he has been disabled since October 1,
1999, as a result of mental illness, a herniated disc and cellutis. PAGEID
249. The applications were denied initially and upon reconsideration, and
plaintiff requested a de novo hearing before an administrative law judge.

1

The administrative law judge found that plaintiff had not established a severe
impairment prior to the lapse of his insured status on September 30, 2004. The
administrative law judge therefore considered the issue of disability only as it
related to plaintiff’s claim for supplement security income. PAGEID 67.

1

A video hearing was held on July 14, 2010, at which plaintiff,
represented by counsel, appeared and testified as did Norman C. Hooge, who
testified as a vocational expert. In a decision dated August 5, 2010, the
administrative law judge concluded that plaintiff was not disabled within
the meaning of the Social Security Act. PAGEID 65-77. That decision became
the final decision of the Commissioner of Social Security when the Appeals
Council declined review on November 4, 2011. PAGEID 59-61.
Plaintiff was 37 years old on the alleged disability onset date. He
has a high school-equivalent education and past relevant work as a roofer’s
helper and general laborer. Plaintiff served in the military from November
1981 to May 1988.
II.
Plaintiff’s Testimony
Plaintiff testified at the administrative hearing that he lives
alone. PAGEID 96. His last significant work was in 1999, when he suffered
a panic attack and was thereafter referred to mental health treatment.
PAGEID 97. He attributes his failure to engage in significant work since
that time to the manic phase of his bipolar disorder. PAGEID 98. He would
typically start on a high, would then miss work and become depressed and
then eventually quit. Id.
His bipolar disorder alternates between manic and depressed phases.
“[E]very day I wake up, I don’t know which way it’s going to be.” PAGEID
100.

Symptoms of his manic phase include an inability to concentrate,

hyperactivity,

racing

sleeping. PAGEID 99.

thoughts,

accelerated

speech

and

difficulty

He feels “like I’m going a mile a minute.” PAGEID

101. When he is depressed, he isolates himself, is edgy and sleeps a lot.

2

PAGEID 100.
3 weeks;

Prior to treatment, his depressed phase would last for 2 to

with treatment, that phase lasts only 3 to 5 days.

PAGEID 100.

He was dissatisfied with treatment at the Veteran’s Administration
(“VA”) facility because treatment there consisted of “double stacking
anti-depressants,” PAGEID 101, for anxiety and depression even though
plaintiff insisted that he suffered from bipolar disorder.

After two

years, plaintiff sought out private psychiatric treatment from Larry
Pfahler, M.D. PAGEID 102. The medication prescribed by Dr. Pfahler helps
to reduce the length of plaintiff’s “spells or cycles.” Id.
Plaintiff has continuing problems with concentration and has to be
reminded of appointments. PAGEID 103.
Plaintiff testified that he attempted to return to work in 2007 but
injured his back. PAGEID 99.

Pain medications prescribed for that

condition caused gastric problems. Id. He further testified that at the
same time, he began drinking again. Id.

He continues to suffer constant

pain in his lower back, which shoots into the left leg and occasionally
the right leg. PAGEID 104-05. A discectomy only increased the pain. Id.
He has attempted physical therapy on three different occasions, but the
condition only worsened. Id.
Plaintiff estimated that he can walk no more than a quarter of a mile,
stand for approximately 10 minutes and sit for 15 to 20 minutes. PAGEID
106. He has used a cane for the prior three years if he must walk any
distance. PAGEID 106-07. He can lift and carry only light items such as
a grocery bag.

He cannot bend or stoop. Id.

3

Plaintiff also has problems with his neck and shoulder. The pain in
his neck radiates into his arms. PAGEID 108. He has trouble holding his
coffee pot in the morning. Id. He sees a chiropractor and receives treatment
at the VA pain clinic for his back and neck. Id.
On a typical day, plaintiff spends most of the day at home, although
he tries to get out of the house once per day, as recommended by his
psychiatrist. PAGEID 109.

If he is over-active, however, he will be in

pain for the next two days. Id.
III.
The Medical Evidence of Record.
Mental Impairment
Plaintiff underwent mental health treatment at Southeast, Inc. from
July 2000 to May 2001. PAGEID 362-77.

Psychiatrist R. Ware, M.D., noted

on August 17, 2000, that plaintiff was pleasant and cooperative, exhibited
normal speech, had a spontaneous affect and exhibited no psychosis. Dr.
Ware diagnosed panic attacks with agoraphobia.

PAGEID 373.

On August 24,

2000, plaintiff reported that he noticed improvement with a new medication
but that he was still experiencing “a lot of anxiety & panic attacks.”
PAGEID 372.

He requested a note characterizing him as disabled “in order

to

some financial assistance.” Id. According to Dr. Ware,

receive

plaintiff’s inability to work was temporary. Id. In March 2001, plaintiff
reported that his panic attacks had decreased from three or four attacks
per day to two to three per week. PAGEID 369-70.

In May 2001, he reported

no panic attacks with Celexa and no adverse side effects from medication.
His affect was bright and appropriate and his mood was euthymic. PAGEID
365-66.

Services were terminated in July 2001 for failure to participate

4

in psychotherapy. Final diagnosis was panic attacks with agoraphobia;
plaintiff was assigned a Global Assessment of Functioning (“GAF”) score
of 65. PAGEID 363-64.
In June 2007, plaintiff underwent a mental health consultation at the
VA facility. PAGEID 554-57.

A staff psychiatrist diagnosed an adjustment

disorder, mixed and rule out depression, not otherwise specified. Plaintiff
was assigned a GAF score of 60. PAGEID 556.
complained of “a lot of anxiety” and stress.
PAGEID

584.

Two

weeks

later,

plaintiff

In July 2007, plaintiff

He was also drinking often.
reported

that

psychotropic

medications were “working well for him” and he denied alcohol use. PAGEID
577. He was assigned a GAF score was 78. PAGEID 578. The record shows that
plaintiff continued to receive mental health treatment at the VA facility
through June 2008. PAGEID 563-67, 739-42, 768-70, 799-803, 810-12.
In December 2007 and April 2008, state agency psychologists reviewed
the record and concluded that plaintiff’s mental impairments were not
severe. PAGEID 608, 712.
Plaintiff

began

mental

health

treatment

at

the

Lower

Heights

Christian Health Center (“LHCHC”) in August 2009. PAGEID 987-89.

William

Turek, D.O., diagnosed a depressive disorder. PAGEID 988-89. The following
month, plaintiff reported that the prescribed psychotropic medications had
a “good effect.”

Plaintiff noted that this was the most stable emotionally

he had ever been. PAGEID 981. In October 2009, although his manic episodes
had continued, plaintiff reported that he was pleased with his emotional
state. PAGEID 975. In November 2009, plaintiff reported to Larry Pfahler,
M.D., that he had experienced a few days of depression. PAGEID 971. Dr.
Pfahler recommended that he get out of his apartment. Id.

5

In March 2010, Dr. Pfahler completed a mental residual functional
capacity assessment in which he indicated that plaintiff was moderately
impaired

in

his

ability

to

accept

instructions

from

or

respond

appropriately to criticism from supervisors; to work in coordination with
or in proximity to others without distracting them or exhibiting behavioral
extremes; to respond appropriately to coworkers or peers; to relate to the
general public and maintain socially appropriate behavior; and to carry
through with instructions and complete tasks. PAGEID 1046-48. Plaintiff
was moderately to markedly limited in his ability to respond appropriately
to changes in the work setting, PAGEID 1048, and was markedly impaired in
his ability to perform and complete work tasks in a normal work day or week
at a consistent pace; to work in cooperation with or in proximity to others
without being distracted by them; to process subjective information
accurately and to use appropriate judgment; to maintain attention and
concentration for more than brief periods of time; to perform at production
levels expected by most employers; to behave predictably, reliably, and
in an emotional stable manner; to remember locations and workday procedures
and instructions; to be aware of normal hazards and take necessary
precautions; and to tolerate customary work procedures. PAGEID 1046-48.
Dr. Pfahler concluded that plaintiff had “failed lots of jobs!! for whatever
reason,” PAGEID 1048, but believed that plaintiff was capable of managing
his own funds. Id.

Physical Impairment
Following a September 2007 injury to his back, plaintiff was diagnosed
with an acute lumbosacral strain. PAGEID 396. An MRI of the lumbar spine

6

showed chronic disc degeneration at L5-S1 associated with discogenic
inflammation and an extruded disc behind the L5 vertebral body from the
L4-L5 disc space. PAGEID 529-30.

Leon Hughes, M.D., directed that

plaintiff not perform work requiring heavy lifting, repetitive bending,
and prolonged standing for one month.

PAGEID 560-61.

On October 15, 2007,

Dr. Hughes refused plaintiff’s request for more Percocet, but indicated
that plaintiff remained unable to work until December 12, 2007, by which
time “he will have been seen in the pain management clinic and condition
stabilized.” PAGEID 745. Plaintiff began using a TENS unit in November 2007.
PAGEID 803.
Mounir Sanhaji, M.D., a pain management specialist, treated plaintiff
from October 2007 until January 2009. PAGEID 674-76, 751-60, 782, 794-95,
796-99,

804-08,

856,

859-61,

869-74,

882-85,

907-10,

960-62.

In

September, October and November 2007, Dr. Sanhaji wrote cursory statements
of disability for plaintiff. PAGEID 620 (plaintiff “is not able to work.
He had a herniated lumbar disc and will not be able to work for one month;”
plaintiff was “being cared for at the VAOPC and has a herniated disc. He
is unable to work until 12/12/07;” plaintiff was “unemployable until
1/20/08.”)

Id. On January 16, 2008, Dr. Sanhaji indicated that plaintiff

could return to work on February 16, 2008. PAGEID 556.
State agency physicians reviewed the file in December 2007 and June
2008, and concluded that plaintiff could perform a reduced range of light
work. PAGEID 610-17, 829-36.
On April 2, 2008, Rebecca Brightman, M.D., performed a left L4-L5
hemilaminotomy and discectomy for a diagnosis of left L4-L5 herniated
nucleus pulposus.

PAGEID 689-90. On April 5, 2008, plaintiff presented

7

to the emergency room complaining of postoperative pain in the low back
radiating down his left leg. His neurological examination was normal and
there was no evidence of cord compression. Prednisone was prescribed.
PAGEID 694-703.

The following month, Dr. Brightman noted continued back

pain and muscle spasms. She recommended physical therapy. PAGEID 713.
Although plaintiff was initially evaluated for physical therapy, in
August 2008, Dr. Sanhaji noted that no physical therapy had begun. PAGEID
874.
Plaintiff underwent a second physical therapy evaluation on March 30,
2009. PAGEID 949-51.

Plaintiff presented with low back and radicular lower

extremity pain, left greater than right, with range of motion and strength
deficits and some diminished sensation in the left lower extremity.

The

physical therapist noted that plaintiff had good rehabilitation potential.
PAGEID 950. On April 29, 2009, however, the physical therapist noted
plaintiff’s failure to appear for therapy or to comply with his home
exercise program. Plaintiff also reported that he hurt all over. PAGEID
944.

Plaintiff was approved for another month of therapy to

complete his remaining visits. PAGEID 938. In May 2009, plaintiff’s
physical

therapist

again

noted

a

failure

to

appear

for

therapy

appointments. PAGEID 872. Plaintiff also acknowledged that he had not been
consistent

in

his home exercise program. PAGEID 871.

Plaintiff’s

attendance over the ensuing two months was inconsistent. PAGEID 912-29.
Plaintiff underwent chiropractic treatment by Scott Gosselin, D.C.,
from February 10, 2010 to March 5, 2010.

PAGEID 1028-43.

reported improvement in his neck. PAGEID 1037.

8

Plaintiff

On March 25, 2010, plaintiff presented to Dr. Turek at LHCHC for
follow-up and medication refills. Dr. Turek warned plaintiff that the
practice could terminate its treatment of him if he engaged in drug seeking
behavior.

PAGEID 1038-39.

In April 2010, plaintiff underwent a sleep study performed by
neurologist,

James

P.

Fulop,

M.D.,

who

diagnosed

hypersomnia,

a

non-specific finding. PAGEID 1057-60. Dr. Fulop also reported that
plaintiff was disabled by bipolar disorder and anxiety and

was very

limited by chronic pain. PAGEID 1119.
An April 2010 MRI of the lumbar spine showed postoperative changes
at L4-L5 with no complications. There was no evidence of recurrent disc,
marked mass-effect or canal stenosis. There was evidence of advanced
degenerative disc disease at L5-S1 but no large focal disc protrusion.
PAGEID 1050-51.
Thomas Moon, M.D., saw plaintiff at the VA pain clinic in May 2010.
Plaintiff had an antalgic gait and used a quad cane. PAGEID 1091. He
exhibited pain with range of motion and on palpation of his lumbar spine
but had full muscle strength in both lower extremities. PAGEID 1092.

The

following month, plaintiff reported that he was happy with his pain relief.
PAGEID 1123.
IV.
Administrative Decision
In his decision, the administrative law judge found that plaintiff’s
severe impairments consist of arthritis in the entire spine causing pain
in his cervical, lumbar, and thoracic spine; degenerative disc disease of
the cervical and lumbar spine; sleep apnea and insomnia; hypertension;

9

obesity; hernias; bipolar disorder; and gastroesophageal reflux disease.
PAGEID 67. The administrative law judge went on to find that plaintiff’s
impairments neither met nor equaled any listed impairment. PAGEID 68.
The administrative law judge found that plaintiff has the physical
residual functional capacity to perform light exertion. Specifically, the
administrative law judge found that plaintiff can lift and/or carry 20
pounds occasionally and 10 pounds frequently; can stand and/or walk for
6 hours in an 8 hour workday; and can sit for 6 hours in an 8 hour workday.
The administrative law judge also found that plaintiff could never climb
ladders, ropes or scaffolding but could occasionally climb ramps and
stairs.

He

could

occasionally

stoop

and

kneel.

PAGEID

69-75.

The

administrative law judge found that, from a mental standpoint, plaintiff
could understand and carry out simple 1- to 3-step tasks, could not work
at a forced or assembly line pace and could have only occasional contact
with co-workers, supervisors and the general public. PAGEID 69.
Although this residual functional capacity would not permit the
performance of plaintiff’s past relevant work, the administrative law judge
relied on the testimony of the vocational expert to find that plaintiff
is capable of performing other work that exists in significant numbers in
the national economy. PAGEID 75-77. Accordingly, the administrative law
judge concluded that plaintiff was not disabled within the meaning of the
Social Security Act.

PAGEID 77.
V.
DISCUSSION

Pursuant to 42 U.S.C. §405(g), judicial review of the Commissioner’s
decision

is

limited

to

determining

10

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
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

his

Statement

of

Errors,

plaintiff

contends

administrative law judge erred in his credibility findings.

that

the

In a related

argument, plaintiff contends that, had the administrative law judge
properly

credited

plaintiff’s

subjective

concluded that plaintiff is disabled.

complaints,

Plaintiff also

he

would

have

argues that the

administrative law judge improperly evaluated the opinions of Drs. Sanhaji,
Pfahler and Fulop and should have secured the testimony of a medical expert.
Because the Court concludes that the administrative law judge failed to

11

properly assess plaintiff’s credibility, the Court recommends that the
action be remanded to the Commissioner.
A claimant's subjective complaints must be supported by objective
medical evidence in order to serve as a basis for a finding of disability.
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993).
See also 42 U.S.C. § 423(d)(5)(A). In evaluating subjective complaints,
a court must look to the record to determine whether there is objective
medical evidence of an underlying medical condition. Stanley v. Sec’ of
Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). If so, the court
must then determine (1) whether objective medical evidence confirms the
severity of the complaint arising from the condition; or (2) whether the
objectively established medical condition is of such severity that it can
reasonably be expected to produce the alleged complaint. Id. (quoting
Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986).
“Consistency between a claimant’s symptom complaints and the other evidence
in the record tends to support the credibility of the claimant, while
inconsistency,

although

opposite effect.”

not

necessarily

defeating,

should

have

the

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th

Cir. 2007).
The administrative law judge’s credibility determination is accorded
great weight and deference because of the administrative law judge’s unique
opportunity to observe a witness' demeanor while testifying. Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825
F.2d 98, 973 (6th Cir. 1987)). However, credibility determinations must
be clearly explained. See Auer v. Sec’y of Health & Human Servs., 830 F.2d
594, 595 (6th Cir. 1987). If the administrative law judge's credibility

12

determinations are explained and enjoy substantial support in the record,
a court is without authority to revisit those determinations. See Felisky
v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec’y of Health,
Educ. and Welfare, 577 F.2d 383, 386–87 (6th Cir. 1978).
In the case presently before the Court, the administrative law judge
found that plaintiff’s subjective complaints are not credible to the extent
that they were inconsistent with the residual functional capacity as found
by the administrative law judge.

PAGEID 71.

From both a mental and

physical standpoint, the administrative law judge specifically found “no
objective medical evidence to show that the severity would prevent
[plaintiff] from doing a job that would follow the . . . residual functional
capacity” found by the administrative law judge.

PAGEID 71-73.

However,

the administrative law judge merely summarized the medical evidence -which

includes

surgical

procedures,

pain

medication,

psychotropic

medication and mental health counseling -- and offered no explanation why
that evidence failed to support plaintiff’s subjective complaints. Under
these circumstances, the Court is unable to evaluate the administrative
law judge’s credibility assessment or to conclude that that assessment is
supported by substantial 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 proceedings.
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

13

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: January 29, 2013

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

14