Mount v. Commissioner of Social Security
Filing
21
REPORT AND RECOMMENDATIONS re 4 Complaint filed by Julie N. Mount. It is RECOMMENDED that the decision of the Commissioner be affirmed and that this action be dismissed. Objections to R&R due by 7/1/2013. Signed by Magistrate Judge Norah McCann King on 6/13/2013. (nmk0)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JULIE N. MOUNT,
Plaintiff,
vs.
Civil Action 2:12-CV-943
Judge Watson
Magistrate Judge King
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.
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 Julie N. Mount Statement of Specific Errors
(“Statement of Errors”), Doc. No. 12, the Commissioner’s Opposition to
Plaintiff’s Statement of Errors, Doc. No. 18, and plaintiff’s Reply,
Doc. No. 20.
Plaintiff Julie Mount filed her applications for benefits on
September 11, 2008, alleging that she has been disabled since
September 1, 2008.
See PAGEID 152-56.
The applications were denied
initially and upon reconsideration, and plaintiff requested a de novo
hearing before an administrative law judge.
An administrative hearing was held on May 3, 2011, at which
plaintiff, represented by counsel, appeared and testified, as did Lynn
M. Kaufman, who testified as a vocational expert.
PAGEID 79-80.
In a
decision dated June 14, 2011, the administrative law judge concluded
that plaintiff was not disabled from September 1, 2008, through the
date of the administrative decision.
PAGEID 71.
That decision became
the final decision of the Commissioner of Social Security when the
Appeals Council declined review on August 20, 2012.
PAGEID 47.
Plaintiff was 23 years of age on the date of the administrative
law judge’s decision.
See PAGEID 71, 152.
She has a limited
education, is able to communicate in English, and has past relevant
work as a sales associate.
PAGEID 69.
Plaintiff was last insured for
disability insurance benefits on September 30, 2009.
PAGEID 64.
She
has not engaged in substantial gainful activity since September 1,
2008, her alleged date of onset of disability.
II.
Id.
School Records
Plaintiff graduated from high school in May 2006 without having
failed any classes.
PAGEID 333.
She was assigned to some special
education classes, see PAGEID 341, and completed modified classes in a
marketing program at a career center.
PAGEID 334.
Plaintiff
performed “well” at the career center, but needed help with reading
and spelling.
Id.
Plaintiff was also provided a tutor and extended
time to complete assignments. She was permitted to use a calculator
and spell checker, she worked in a small group setting, and tests were
read to her.
PAGEID 334-35, 351-54.
School evaluations describe plaintiff as (1) very motivated in
the classroom and achieving successful progress in the general
curriculum, (2) “a hard worker who works daily to the best of her
2
ability.
She perseveres even when frustrated, and is not afraid of a
challenge,” (3) slowed by reading and spelling difficulties but very
responsible in turning in work and constantly aware of times, dates
and getting things done, and (4) “a very conscientious student
[who]completes all her assignments and is always prepared.
She works
fairly independently, mostly asking questions only for clarification.”
PAGEID 346, 350-52.
Plaintiff’s special education teachers noted
occasional behavioral problems related to her verbal aggressiveness
and her tendency to complain about required tasks.
PAGEID 347-48.
On
standardized school testing administered in March 1996, plaintiff
achieved the following scores: WISC-III (intelligence) 87 (“Low
Average”), WJ-R Broad Reading 63 (“Well Below Average”), WJ-R Broad
Math 87 (“Low Average”), WJ-R Broad Writing 61 (“Well Below Average”),
Vineland (Adaptive Behavior) 68 (“Well Below Average”).
PAGEID 347.
The school psychologist commented, “Adaptive behavior was collected
and found to be well below average, but attention difficulties and
impulsive behavior were thought to contribute to this low classroom
assessment.”
Id.
III. Medical Evidence
In 2006 and 2007, plaintiff complained of chronic pain in her
back, especially with prolonged standing, walking, or sitting.
PAGEID 257-69.
See
A March 9, 2006 MRI showed disc dehydration along with
minimal to mild central disc bulge at L5-S1.
PAGEID 265.
A November
9, 2006 discography was concordant for pain and indicated a partial
annular tear posteriorly at L5-S1 with a negative controlled discogram
at L4-5.
PAGEID 262-63.
3
Mark A. Fulton, M.D., performed a decompression laminectomy,
fixation with interbody fusion on January 26, 2007.
PAGEID 267.
On
February 26, 2007, Dr. Fulton described plaintiff as “do[ing]
remarkably well since surgery,” and noted that her preoperative
symptoms, including the chronic severe sense of pressure in her low
back, had largely resolved.
PAGEID 257.
Plaintiff did report “some
occasional pain down the posterior thigh on the right side, but even
that she sa[id] is considerably better.”
Id.
On September 15, 2008, plaintiff saw Dr. Fulton after she was
thrown from a four-wheeler and it “wound up landing on her lower
back.”
PAGEID 453.
The wound from the accident had “healed very
nicely,” but plaintiff’s back was “fairly tender to palpation” and she
had a positive straight leg raise on the right.
Id.
Plaintiff also
reported that “she had some trouble with some nagging intermittent hip
pain on the right side about a year ago but she really did not seek
any specific treatment for that.”
Id.
An October 6, 2008 MRI and x-ray of the lumbar spine revealed
status post laminectomy and posterior lumbar interbody fusion with
pedicle screw fixation at L5-S1.
PAGEID 455-56.
Dr. Fulton did “not
see anything worrisome on her imaging studies;” the “fusion appear[ed]
to be solid,” the hardware was “in good position,” there was no
evidence of instability, the adjacent segment discs appeared to be
healthy with no evidence of complication, and there was no “specific
injury related to her [four-wheeler] accident.”
PAGEID 458-59.
Dr.
Fulton recommended a course of trigger point injections to address a
right side contusion and chronic inflammatory problem.
4
Id.
W. Jerry McCloud, M.D., completed a physical residual functional
capacity assessment on behalf of the state agency on November 7, 2008.
PAGEID 479-86.
According to Dr. McCloud, plaintiff could occasionally
lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds,
stand and/or walk for six hours in an 8-hour workday, and sit for six
hours in an 8-hour workday.
PAGEID 480.
Dr. McCloud also opined that
plaintiff could frequently stoop, kneel, crouch, and crawl.
PAGEID
481.
Linda Hall, M.D., another state agency physician, reviewed the
record and, on April 2, 2009, affirmed Dr. McCloud’s assessment.
PAGEID 540.
Plaintiff saw neurosurgeon David S. Knierim, M.D., FACS, on
November 13, 2008 for “pain in the right buttock going down the back
to the right knee.”
PAGEID 488-89.
Plaintiff complained that her
“back pain did not really get better” after her previous surgery and
was aggravated by sitting, standing, and lying for an extended period
of time.
Id.
Dr. Knierim recommended surgery because he thought
plaintiff “may have a tethered cord syndrome.”
Id.
Plaintiff underwent a lumbosacral laminectomy with release of
tethered cord on December 10, 2008.
PAGEID 494-98.
In January 2009,
plaintiff reported continued pain in the right buttock.
PAGEID 500-
01.
Plaintiff began physical therapy for her back at Advanced Therapy
Specialists in January 2009.
She reported being limited to 20 minutes
of walking a day, five to ten minutes of standing a day; she could sit
“most of the day.”
PAGEID 520.
Plaintiff reported on February 11,
5
2009 that therapy was “helping a lot” and, on February 13, 2009, that
she was “feeling a lot better.” A progress report dated February 17,
2009 characterized her progress as “poor.”
PAGEID 527-28.
Plaintiff continued to report back pain in 2010 and 2011.
e.g., PAGEID 600, 608, 618, 624, 674, 683, 687.
See
An April 2010 MRI of
the lumbar spine showed “[s]tatus post L5 bilateral laminectomies and
L5-S1 fusion with normal appearance of the hardware and osseous
structures.
No evidence of recurrent disc, impinging epidural
fibrosis or progressive degenerative changes.”
PAGEID 620.
An April
2010 MRI of the cervical spine showed ligamentous hypertrophy at C1-2,
but was otherwise unremarkable.
PAGEID 622.
Plaintiff began treating at Six County, Inc., on April 16, 2008,
for depression.
PAGEID 415-28, 542.
She reported mood swings,
distractibility, anxiety, crying and depression, which she attributed
primarily to difficulty with reading and spelling.
PAGEID 417, 422.
She reported visiting with friends and having two “really supportive”
friends.
PAGEID 418.
Plaintiff was diagnosed with bipolar I
disorder, most recent episode depressed.
PAGEID 424, 542.
on
September 11, 2008, Kent Davis, D.O., diagnosed an affective disorder,
NOS, and prescribed medication and continued counseling.
PAGEID 415-
16, 542.
Bonnie Katz, Ph.D., completed a psychiatric review technique form
and a mental RFC assessment on behalf of the state agency on October
20, 2008.
PAGEID 461-77.
Dr. Katz opined that plaintiff has moderate
limitations in activities of daily living, in maintaining social
functioning, and in maintaining concentration, persistence, or pace.
6
PAGEID 471.
Plaintiff has moderate limitations in her ability to (1)
understand and remember detailed instructions, (2) carry out detailed
instructions, (3) maintain attention and concentration for extended
periods, (4) perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances, (5) work in
coordination with or proximity to others without being distracted by
them, (6) complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods, (7)
interact appropriately with the general public, (8) accept
instructions and respond appropriately to criticism from supervisors,
(9) get along with coworkers and peers without distracting them or
exhibiting behavioral extremes, (10) respond appropriately to changes
in the work setting, and (11) set realistic goals or make plans
independently of others.
PAGEID 475-76.
Plaintiff is not
significantly limited in the remaining nine of 20 categories of
functioning.
Id.
Jennifer Swain, Psy.D., another state agency psychologist,
reviewed the record and, on January 30, 2009, affirmed Dr. Katz’s
assessment.
PAGEID 510.
Plaintiff was next evaluated at Six County, Inc., on February 25,
2010.
Plaintiff reported a depressed mood “once in a while but not
too bad right now,” paranoia, anxiety, inability to focus or maintain
concentration, and inability to sleep.
PAGEID 652-54.
She was
diagnosed with bipolar I disorder, most recent episode depressed,
moderate.
PAGEID 656.
7
Plaintiff presented to Erin Roylance, D.O., at Six County, Inc.,
on March 15, 2010.
“[a] lot of anger.”
PAGEID 646-50.
Id.
Plaintiff’s chief complaint was
Dr. Roylance diagnosed borderline
intellectual functioning; major depressive disorder, recurrent,
moderate; generalized anxiety disorder; attention deficit
hyperactivity disorder; post-traumatic stress disorder; insomnia;
nicotine dependence; and learning disorder, NOS.
PAGEID 649.
She
assigned a Global Assessment of Functioning (“GAF”)1 of approximately
55.
Id.
Plaintiff reported improvement on April 5, 2010; she was not
as fearful at night and believed that her medication was helping her
anxiety, depression, and stress; however, she reported continuing
frustration and a low stress tolerance.
PAGEID 644-45.
On May 17,
2010, plaintiff reported that “her sleep [wa]s good,” her focus was
good, her attention was better, and that she was able to get her
driver’s license.
PAGEID 642-43.
On June 21, 2010, plaintiff
reported that she was more aggravated and meaner.
PAGEID 640-41.
Keli A. Yee, Psy.D., consultatively examined plaintiff at the
request of a county agency and completed a disability assessment
report and mental functional capacity assessment on April 8, 2010.
PAGEID 665-73, 677.
Plaintiff reported reduced attention,
concentration, motivation, and energy, depressive symptoms two to
1
“The GAF scale is a method of considering psychological, social,
and occupational function on a hypothetical continuum of mental
health.
The GAF scale ranges from 0 to 100, with serious
impairment in functioning at a score of 50 or below.
Scores
between 51 and 60 represent moderate symptoms or a moderate
difficulty
in
social,
occupational,
or
school
functioning . . . .”
Norris v. Comm’r of Soc. Sec., No. 11-5424, 2012 WL 372986 at *3 n.1 (6th
Cir. Feb. 7, 2012).
8
three times per week, and crying spells “every once in a while.”
PAGEID 671.
On the WAIS-IV, plaintiff achieved a verbal a
comprehension score of 68, a perceptual reasoning score of 75, a
working memory score of 69, a processing speed score of 74, and a full
scale IQ score of 61.
PAGEID 671.
Dr. Yee diagnosed a major
depressive disorder, moderate, recurrent; attention deficit disorder,
combined type; and learning disorder, NOS, and borderline intellectual
functioning.
PAGEID 672.
She assigned a GAF of 59.
Id.
According
to Dr. Yee, plaintiff’s “ability to handle daily stressors, or deal
with others is moderate to markedly impaired at this time due to the
severity of her current mood symptoms.”
PAGEID 671.
“Cognitively,
[plaintiff] would be able to perform in the simple to low moderate
task range, and would likely have difficulties due to reduced
attention problems.”
PAGEID 672.
Dr. Yee further opined that, in 20
areas of functioning related to understanding and memory, social
interaction, and adaptation, plaintiff was moderately limited in 13
areas, markedly limited in three areas, and not significantly limited
in four areas.
PAGEID 665.
A mental residual functional capacity (”RFC”) questionnaire was
completed by Six County Inc., on July 30, 2010.
PAGEID 662-64.
The
form, which appears to have been signed by Dr. Roylance, represents
that, in 16 areas of functioning related to social interaction,
sustained concentration and persistence, and adaptation, plaintiff was
moderately limited in one area, markedly limited in eight areas and
extremely limited in six areas; she had no limitation in one area.
PAGEID 663-64.
9
IV.
May 3, 2011 Administrative Hearing
Plaintiff testified at the administrative hearing that she is a
high school graduate who took only special education classes.
84-85.
PAGEID
Plaintiff has two children, ages six and 16 months, and she
had lived with her boyfriend and two children for the two years prior
to the hearing.
PAGEID 85-86.
Plaintiff testified that it took her four years to obtain her
driver’s license.
PAGEID 87, 109-10.
She failed the test at least
ten times, and passed only with medication having the test read aloud
to her.
Id.
Plaintiff now drives three to four times per week.
Id.
She drove one hour to the administrative hearing, stopping only once
to stretch.
PAGEID 88.
Plaintiff testified that she can lift 30 pounds, stand and walk
for 10 to 15 minutes before needing to sit down, sit for 10 to 15
minutes before pain in her right hip requires her to stand up, stand
and or walk a total of one hour in an 8-hour workday, and sit for a
total of one hour in an 8-hour workday.
PAGEID 94-95.
She wakes up
angry three days per week and stays angry through the middle of the
evening.
PAGEID 104.
She also has crying spells two to three times
per week, along with problems concentrating, focusing, and organizing.
She does not understand the television shows she watches.
107-08.
PAGEID 105,
Plaintiff does not take care of her own finances, but she can
count change.
PAGEID 89.
Plaintiff spends a typical day “[s]itting and standing, sitting
and standing,” and spends approximately two hours lying down.
95.
PAGEID
She goes to bed between one and two a.m., and she wakes up at
10
7:30 a.m. to get her son ready for school.
PAGEID 99, 103.
Plaintiff
spends time with her daughter throughout the day and performs
household chores with breaks.
Specifically, plaintiff washes
Id.
dishes and does laundry, sweeps floors, cooks small dinners, goes
grocery shopping, weeds the garden, bathes, showers, and grooms
herself cares for her two children.
PAGEID 100.
Plaintiff takes her
two children to a lake 20 minutes from her house almost every day in
the summer to watch them swim.
PAGEID 102.
The vocational expert testified that plaintiff has past relevant
work as a sales associate.
PAGEID 110-17.
Asked to assume a claimant
with plaintiff’s vocational profile and the RFC eventually found by
the administrative law judge, the vocational expert testified that
such a claimant could not perform plaintiff’s past relevant work but
could perform about 35% of unskilled medium work (3,800 jobs locally),
about 25% of unskilled light work (4,200 jobs locally) and about 20%
of unskilled sedentary work (675 jobs locally). She gave as examples
of such jobs the positions of cleaner (1,500 jobs locally); laundry
worker (400 jobs locally); and packer (750 jobs locally).
PAGEID 116.
Asked to assume the assessments of Dr. Roylance and Dr. Yee, the
vocational expert testified that such a claimant could not engage in
gainful employment.
V.
PAGEID 118.
Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of lower back pain, status post fusion L5-S1 in
2006 and laminectomy with release of tethered cord in 2008; anxiety;
depression; borderline intellectual functioning; attention deficit
11
hyperactivity disorder and learning disorder.
PAGEID 64.
However,
the administrative law judge also found that plaintiff’s impairments,
whether considered singly or in combination, neither meet nor equal a
listed impairment, including Listing 12.05C, which addresses mental
retardation based on I.Q. scores.
PAGEID 65-67. Specifically, the
administrative law judge found that “the record as a whole does not
indicate the type of deficits in adaptive functioning contemplated by
listing 12.05.”
PAGEID 67.
The administrative law judge went on to find that plaintiff has
the residual functional capacity (“RFC”) to
[p]erform less than the full-range of medium work as
defined in 20 CFR §§ 404.1567(c) and 416.967(c) with the
following abilities and limitations: (1) able to lift 50
pounds occasionally and 25 pounds frequently; (2) able to
stand and walk six hours in an eight-hour workday; (3) able
to sit six hours in an eight-hour workday; (4) able to
frequently stoop, kneel, crouch, and crawl; (5) able to
perform simple tasks; (6) able to occasionally interact
with others; (7) precluded from interacting with the
general public; and (8) limited to low stress work (no
strict production quotas or time pressures) and relatively
static changes that can be easily explained with clear
performance expectations.
PAGEID 67.
Although this RFC precluded plaintiff’s past relevant
work, the administrative law judge relied on the testimony of the
vocational expert to find that plaintiff is able to perform a
significant number of jobs in the national economy despite her
lessened capacity.
PAGEID 70-71.
Accordingly, the administrative law
judge concluded that plaintiff was not disabled within the meaning of
the Social Security Act from September 1, 2008, through the date of
the administrative law judge’s decision.
VI.
Discussion
12
PAGEID 71.
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.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
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. Sec’y of
Health & 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.
F.2d at 536.
Kirk, 667
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, 402 F.3d at 595.
Plaintiff argues, first, that the administrative law judge
erred in concluding that plaintiff does not meet the requirements of
Listing 12.05C.
Statement of Errors, pp. 7-12.
Specifically,
plaintiff argues that the administrative law judge erred by limiting
the assessment of “adaptive skills [that] Ms. Mount could perform,” to
13
“her ability to perform regular household chores and activities of
daily living,” and “not whether or not she had two comorbid adaptive
skill deficits as regulation requires.”
Id.
Plaintiff complains that
the administrative law judge did not consider plaintiff’s “significant
deficits in functional academic skills,” such as taking special
education classes, failing portions of the 9th grade Ohio proficiency
test, failing her driver’s license test, and having difficulty reading
and comprehending written materials.
Id.
Plaintiff also argues that
the administrative law judge should have considered the consistency
between plaintiff’s work behavior and her school records.
Id. at p.
10.
Listing 12.05 requires, under appropriate circumstances, a
finding of disability based on a claimant's mental retardation:
Mental retardation refers to significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22.
The required level of severity for this disorder is met
when . . . (C) [the claimant has demonstrated] a valid
verbal, performance, or full scale IQ of 60 through 70 and
a
physical
or
other
mental
impairment
imposing
an
additional and significant work-related limitation of
function.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C).
A claimant must
establish three elements in order to satisfy Listing 12.05C: that she
experiences “significantly subaverage general intellectual functioning
with deficits in adaptive functioning [that] initially manifested
during the developmental period” (i.e., the diagnostic description);
(2) that she has a “valid verbal, performance, or full scale IQ of 60
through 70;” and (3) that she suffers from “a physical or other mental
14
impairment imposing an additional and significant work-related
limitation of function.”
Id.
See also Foster v. Harris, 279 F.3d
348, 354–55 (6th Cir. 2001).
The administrative law judge expressly recognized qualifying IQ
scores in the record.
PAGEID 67.
However, the administrative law
judge went on to find that the record did not “indicate the type of
deficits in adaptive functioning contemplated by listing 12.05. . . .”
Id.
[T]he record as a whole does not indicate the type of
deficits in adaptive functioning contemplated by listing
12.05, particularly in light of the fact that the claimant
performs household chores such as washing dishes, laundry,
sweeping, cooking small meals, and grocery shopping, weeds
her flower garden, cares for her two young children, cares
for herself and her own personal hygiene, takes her
children to the lake every day in the summer to watch them
swim, checks the news and weather on the internet, drives
three to four times per week, drove from one hour away to
the hearing, apparently attends her doctor’s visits alone
or with her child, transports her children to their
doctor’s appointments, is able to count change, has a
detailed understanding of the medications she takes and why
she takes them, and is generally described as being
cooperative and having logical thought processes and fair
insight/judgment by her treating providers.
Id. (citations omitted).
“Adaptive functioning includes a claimant's effectiveness in
areas such as social skills, communication, and daily living skills.”
West v. Comm’r of Soc. Sec., 240 F. App’x 692, 698 (6th Cir. 2007)
(citing Heller v. Doe by Doe, 509 U.S. 312, 329 (1993)).
See also
Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 677 (6th Cir. 2009).
The administrative law judge found that plaintiff had only “mild”
limitations in activities of daily living and “moderate” limitations
in social functioning and in concentration, persistence, or pace, and
15
that plaintiff did not have “the type of deficits in adaptive
functioning contemplated by listing 12.05.”
PAGEID 65-67.
Substantial evidence supports the administrative law judge’s finding
in this regard.
First, although plaintiff was enrolled in special education
classes in school and had difficulty reading and spelling, she
graduated from high school in May 2006 without failing any classes,
performed “well” in her career center classes, had positive teacher
reviews, and played on the basketball team.
See PAGEID 333-54.
Second, plaintiff was diagnosed with borderline intellectual
functioning, rather than mental retardation, by Dr. Roylance and Dr.
Yee, PAGEID 649, 672, and no medical provider has diagnosed mental
retardation.
Finally, plaintiff’s testimony at the administrative
hearing and the medical evidence suggests that she is able to manage
normal activities of daily living.
See e.g., PAGEID 85-110 (testimony
that plaintiff performs household chores, weeds her garden, takes care
of her two children and her personal hygiene, drives three to four
times per week, takes her children to a lake 20 minutes away nearly
every day in the summer, and goes grocery shopping); PAGEID 418
(plaintiff reported visiting with friends and having two “really
supportive” friends).
This substantial evidence supports the
administrative law judge’s finding that plaintiff did not exhibit
deficits in adaptive functioning initially manifested during the
developmental period.
See Justice v. Comm’r of Soc. Sec., No. 12-
3150, 2013 WL 645957, at *4 (6th Cir. Feb. 22, 2013); Hayes, 357 F.
App’x at 677 (“[T]he record shows that Hayes’s adaptive skills are not
16
deficient.
She cares for herself and her husband; cooks meals, does
laundry, and shops; manages her finances; and takes public
transportation.”); West, 240 F. App’x at 698.
Plaintiff next argues that the administrative law judge erred by
not following the treating physician rule when evaluating the opinion
of Dr. Roylance.
Statement of Errors, pp. 15-20.
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.”
404.1527(c)(2), 416.927(c)(2).
20 C.F.R. §§
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. §§
404.1527(c)(2)-(6), 416.927(c)(2)-(6); Blakley v. Comm’r of Soc. Sec.,
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
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. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007)
17
(quoting SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)).
This
special treatment afforded the opinions of treating providers
recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
In the case presently before the Court, plaintiff treated with
Dr. Roylance four times between March 15, 2010 and June 21, 2010.
PAGEID 641-50.
A mental residual functional capacity assessment dated
July 3, 2010, which appears to have been completed by Dr. Roylance,
represents that, in 16 areas of functioning related to social
interaction, sustained concentration and persistence, and adaptation,
plaintiff was moderately limited in one area, markedly limited in
eight areas, extremely limited in six areas; there was no limitation
in one area.
PAGEID 663-64.
The administrative law judge recognized
Dr. Roylance as a treating provider, but afforded her opinion only
“very little weight” in determining plaintiff’s RFC.
See PAGEID 69.
The administrative law judge’s analysis of Dr. Roylance’s opinion
does not violate the treating physician rule.
The administrative law
judge provided specific reasons for assigning very little weight to
Dr. Roylance’s opinion:
[Dr. Roylance’s opinion is] inconsistent with the treatment
records as a whole, which reveal that the claimant is
generally noted to have a normal affect, logical thought
process, fair insight and judgment, cooperative/pleasant
demeanor, and an appropriate/good mood, and because [Dr.
Roylance’s assessment is] inconsistent with her activities
18
of daily living and level of adaptive functioning as set
forth above.
Id. (citations omitted).
See also PAGEID 65-67 (evaluating
plaintiff’s activities of daily living and level of adaptive
functioning).
Although the administrative law judge’s analysis is
succinct, it is sufficiently specific as to the weight given to Dr.
Roylance’s opinion and the reasons for assigning “very little weight”
to that opinion.
Under the circumstances, a formulaic recitation of
factors is not required.
See Friend v. Comm’r of Soc. Sec., 375 F.
App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s opinion permits the
claimant and a reviewing court a clear understanding of the reasons
for the weight given a treating physician’s opinion, strict compliance
with the rule may sometimes be excused.”).
Further, the administrative law judge’s reasons for assigning
very little weight to Dr. Roylance’s opinion is supported by
substantial evidence.
Significantly, Dr. Roylance’s treatment notes
describe plaintiff as having a “logical” thought process, “bright and
reactive” affect, normal motor sensitivity, cooperative behavior, and
fair insight and judgment.
PAGEID 640-41.
See also PAGEID 642
(logical thought process, fair insight and judgment, cooperative
behavior, good focus); PAGEID 644 (logical thought process,
cooperative behavior, fair insight and judgment); PAGEID 649 (“The
patient is casually dressed and groomed.
to be approximately below average.
Behavior is cooperative.
and variable.
I estimate her intelligence
She was alert, oriented X 4.
Mood is ̔pretty good.’
Affect is reactive
Psychomotor activity is normal to increased.
Speech
was clear, eye contact was good and thought process was logical.
19
Thought content was free from any suicidal or homicidal ideation.
denied any auditory or visual hallucinations.
judgment are fair.”).
Her insight and
Dr. Roylance’s treatment notes also reveal that
plaintiff responded well to treatment and medication.
45.
She
See PAGEID 640-
Plaintiff reported that she was not as fearful at night, “sleep
[wa]s good,” focus was good, attention was better, she was able to get
her driver’s license, and she believed that her medication was helping
her anxiety, depression, and stress.
Id.
Moreover, the
administrative law judge evaluated in extensive fashion plaintiff’s
activities of daily living and level of adaptive functioning and, as
discussed supra, those findings enjoy substantial support in the
record.
It is well-settled that the Commissioner's decision, when
supported by substantial evidence, must be affirmed even if the
plaintiff’s position is also supported by substantial evidence.
See
Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007).
Because the administrative law judge correctly applied the standards
of the treating physician rule to her assessment of Dr. Roylance’s
opinion, and because substantial evidence supports her findings, the
Court finds no error with the Commissioner's decision in this regard.
The administrative law judge accorded “great weight” to the
opinions of Drs. Katz and Swain, the state agency psychologists.
Plaintiff contends that the administrative law judge erred in that
regard because those opinions were based on an incomplete review of
the record.
Statement of Errors, pp. 12-15.
Plaintiff specifically
argues that the opinions of Drs. Katz and Swain were made without
20
reviewing most of the psychological evidence now in the record, i.e.,
Dr. Roylance’s treatment notes from four dates between March 15, 2010
and June 21, 2010, Dr. Roylance’s mental RFC assessment dated July 30,
2010, see PAGEID 640-64, and Dr. Yee’s examination report and mental
RFC assessment dated April 8, 2010, PAGEID 665-73.
Errors, pp. 13-14.
Statement of
Plaintiff’s arguments are not well taken.
“There is no regulation or case law that requires the
[administrative law judge] to reject an opinion simply because medical
evidence is produced after the opinion is formed.”
Williamson v.
Comm’r of Soc. Sec., No. 1:11-cv-828, 2013 WL 121813, at *7 (S.D. Ohio
Jan. 9, 2013).
“Indeed, the regulations provide only that an
[administrative law judge] should give more weight to an opinion that
is consistent with the record as a whole.”
404.1527(c)(4), 416.927(c)(4)).
Id. (citing 20 C.F.R. §§
In the case presently before the
Court, the administrative law judge had the opportunity to review the
entire record, including Dr. Roylance’s treatment notes from March 15,
2010 through June 21, 2010, and yet she gave more weight to the
opinions of Drs. Katz and Swain because they were “supported by and
consistent with the record as a whole,” whereas the opinions of Drs.
Roylance and Yee were “inconsistent with the treatment records as a
whole.”
PAGEID 69.
Plaintiff does not object to the administrative
law judge’s evaluation of Dr. Yee’s opinion and, as discussed supra,
the administrative law judge did not err in assigning very little
weight to Dr. Roylance’s opinion because it was inconsistent with her
treatment notes.
Plaintiff also fails to demonstrate that Dr.
Roylance’s treatment notes contain new observations or findings that
21
were inconsistent with the records upon which Drs. Katz and Swain
relied.
In short, and having carefully considered the entire record in
this action, the Court concludes that the decision of the Commissioner
is supported by substantial evidence.
It is therefore RECOMMENDED
that the decision of the Commissioner be AFFIRMED and that this action
be DISMISSED.
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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
28
Response to objections
must be filed within fourteen (14) days after being served with a copy
thereof.
Fed. 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).
June 13, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
22
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