Houk v. Commissioner of Social Security et al

Filing 23

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Eric J. Houk. It is RECOMMENDED that the decision of the Commissioner be reversed pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action be remanded to the Commissioner for further proceedings. Objections to R&R due by 5/27/2014. Signed by Magistrate Judge Norah McCann King on 5/8/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIC J. HOUK,
Plaintiff,
vs.

Civil Action 2:13-CV-295
Judge Marbley
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), 1383(c), for review of a final decision of the Commissioner of
Social Security denying plaintiff’s applications for disability insurance
benefits and supplemental security income. This matter is now before the
Court on plaintiff’s Statement of Specific Errors, Doc. No. 11, the
Commissioner’s Memorandum in Opposition, Doc. No. 21, and plaintiff’s
Reply, Doc No. 22.
Plaintiff Eric J. Houk filed his applications for benefits on June
23, 2009, alleging that he has been disabled since November 30, 2003. The
applications were denied initially and upon reconsideration, and plaintiff
requested a de novo hearing before an administrative law judge.
On October 27, 2011, an administrative hearing was held, at which
plaintiff, represented by counsel, testified, as did Aimee Spinelli, who
testified as a vocational expert. On December 20, 2011, the administrative
law judge issued a written decision concluding that plaintiff was not
disabled from November 30, 2003, through the date of the administrative
decision. PAGEID 53-67. That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined review
on February 5, 2013. PAGEID 43.
Plaintiff was 43 years of age on the date of the administrative
decision. See PAGEID 65, 242. He has at least a high school education, is
able to communicate in English, and has past relevant work as a clean up
worker, framer, pipeliner and maintenance worker. PAGEID 65, 247, 249.
Plaintiff was last insured for disability insurance benefits on March 31,
2009. PAGEID 55. He has not engaged in substantial gainful activity since
November 30, 2003, his alleged date of onset of disability. Id.
II.

Evidence of Record

Physical Impairments
Plaintiff first saw primary care physician Jeffrey Haggenjos, D.O.,
in September 2007. PAGEID 328. When seen a year later, plaintiff complained
of mood swings and back pain. PAGEID 327.

In May 2009, after seeing

plaintiff for an infected wisdom tooth, Dr. Haggenjos opined that plaintiff
was “currently unable to work.” PAGEID 325-26.
Plaintiff underwent treatment at Family Healthcare, Inc., from July
2009 to February 2010. PAGEID 491-501. A July 2009 MRI of the lumbar spine
showed mild degenerative decreased disc water content at L5-S1 with minimal
concentric annulus bulging. PAGEID 444. An MRI of the ankle revealed OCD
[osteochondral bone defect]/subchondral osteonecrotic lesion in the medial
talar dome with extensive surrounding marrow edema.

PAGEID 443.

State agency physician, Leigh Thomas, M.D., reviewed the record in
November 2009, and concluded that plaintiff’s physical impairments were
not

severe.

According to Dr. Thomas, plaintiff’s statements that

ankle/back pain was limiting his ability to work were only partially

2

credible

in

light

of

the

essentially

normal

findings

in

recent

examinations. PAGEID 489-90.
Michael Sayegh, M.D., a pain specialist, evaluated and treated
plaintiff’s complaints of his chronic pain in the lower back and left leg
on March 15, 2010. Plaintiff described the pain as throbbing and rated the
pain as a 10 on a 0-10 scale. Dr. Sayegh found that plaintiff was mildly
anxious and depressed; he noted trigger points and bilateral tenderness
in plaintiff’s paraspinal muscles, and decreased sensation in the lateral
aspect of plaintiff’s left lower leg. The following month, plaintiff was
dismissed from Dr. Sayegh’s practice when his drug test proved positive
for Morphine and Oxycodone, which Dr. Sayegh had not prescribed. PAGEID
737.
Julie Chen, M.D., another pain specialist, reported to Dr. Haggenjos1
that plaintiff walked with an unsteady gait and limp, had reduced range
of motion in his left ankle, tender points, paraspinal spasm and sacroiliac
pain. She diagnosed joint pain in the lower left leg, lumbar/lumbosacral
disc degeneration and spondylosis and pain in limb. PAGEID 733-34. She
recommended a BLE nerve scan, opioid rotation, psychological consultation
and possible denervation of the lumbar medial branch, left ankle nerve block
and “UDS.”

PAGEID 734.

In March 2011, a Basic Medical Form was completed for the Perry County
Department of Job and Family Services indicating that plaintiff is limited
in his ability to stand, walk and sit and can lift and carry no more than
20 pounds. PAGEID 747. Plaintiff is also “extremely limited” in pushing
and pulling, bending, reaching, handling, repetitive foot movements and

1

The date of Dr. Chen’s examination of plaintiff is not apparent from the exhibit.

3

hearing. Id. The physician concluded that plaintiff is “unemployable.”2
PAGEID 747.
On March 22, 2011, plaintiff presented to the emergency room after
falling

from

a

ladder

onto

gravel-covered

ground.

PAGEID

710-20.

Plaintiff reported moderate head and low back pain. PAGEID 711. Clinical
examination revealed normal range of motion and minimal tenderness. PAGEID
712.

A CT scan of plaintiff’s cervical spine showed degenerative changes

at C2-C5 and osteophyte formation at C5. PAGEID 717.
Mental Impairments
Charles

Loomis,

M.Ed.,

performed

a

consultative

psychological

evaluation on behalf of the state agency on September 2, 2009.

PAGEID

452-57. Plaintiff reported impulsive behavior, agitation, interrupted
sleep,

loss

of

libido,

feelings

of

hopelessness,

racing

thoughts,

hyperactivity, and irritability. PAGEID 454. Plaintiff also reported
occasional alcohol use; he had not used recreational drugs for six months.
According to Mr. Loomis, plaintiff displayed an expansive affect and only
mild motor manifestations of anxiety. He reported no crying spells or
suicidal ideation. He demonstrated average concentration and attention to
task.

According to Mr. Loomis, plaintiff appeared to be functioning in

the low average range of intelligence with a fourth grade reading level.
PAGEID 455.

Mr. Loomis diagnosed a reading disorder, bipolar disorder NOS

and a personality disorder with antisocial and borderline features. PAGEID

2

Plaintiff contends this opinion was completed by Dr. Haggenjos. See Doc. No. 11
at PAGEID 761, 766. The administrative law judge noted that the report “is signed
by an illegible name.” PAGEID 64. In a form certifying to the same agency plaintiff’s
dependency on medication for bipolar disorder, the same physician indicated that
plaintiff “is my patient. . . .” PAGEID 748.

4

456. He assigned a Global Assessment of Functioning (GAF) score of 50,3 which
is

suggestive

of severe dysfunction. Id. According to Mr. Loomis,

plaintiff’s mental ability to relate to others was markedly impaired as
was his ability to cope with the ordinary stresses and pressures of
competitive work. PAGEID 456-57.
Keli

A.

Yee,

Psy.D.,

performed

a

consultative

psychological

evaluation on behalf of the Ohio Department of Job and Family Services on
September 30, 2009.

PAGEID 460-67. Plaintiff reported a long history

anxiety, anger, and problems with ADHD; however, plaintiff was receiving
no mental health treatment. PAGEID 461.

According to Dr. Yee, plaintiff

exhibited restlessness, intermittent eye contact, motor signs of anxiety,
pressured speech, average to extensive spontaneity and embellishment,
depressed mood, anxious affect, and suicidal ideations. PAGEID 464. WRAT-4
testing resulted in fourth to fifth grade academic skills. PAGEID 465.
Plaintiff’s

attention

and concentration to be decreased.

Dr. Yee

diagnosed bipolar disorder, learning disorder, and personality disorder.
PAGEID 466.

She assigned a GAF score of 62, which is indicative of only

mild symptoms. According to Dr. Yee, plaintiff was a poor candidate for
return to work due to multiple return-to-work obstacles, such as untreated
medical problems, a history of special education classes, and severity of
current mood symptoms as well as problems with attention/concentration.
“[H]e appears to have a long history of difficulties maintain[ing] gainful
employment [which] may suggest he is a better candidate for a longer term
3

The GAF is a tool used by health-care professionals to assess a person’s
psychological, social, and occupational functioning on a hypothetical
continuum of mental illness. It is, in general, a snapshot of a person’s
“overall psychological functioning” at or near the time of the evaluation.
See Martin v. Commissioner, 61 Fed.Appx. 191, 194 n.2 (6th Cir. 2003); see
also Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text
Revision (“DSM-IV-TR”) at 32-34.

5

disability type program (social security disability) at this time.” PAGEID
466.
Dr. Yee also completed a mental functional capacity assessment in
which she indicated that plaintiff was markedly limited in his abilities
to understand and remember and carry out detailed instructions; to maintain
attention and concentration for extended periods; to work in coordination
with or proximity to others without being distracted by them; to complete
a normal work-day and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods; and to accept instructions and respond
appropriately to criticism from supervisors. PAGEID 459. Plaintiff was
moderately limited in his abilities to remember locations and work-like
procedures; to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; to sustain an
ordinary routine without special supervision; to interact appropriately
with the general public; to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; to maintain socially
appropriate behavior and to adhere to basic standards of neatness and
cleanliness; to respond appropriately to changes in the work setting; to
travel in unfamiliar places or use public transportation; and to set
realistic goals or make plans independently of others. Id. Dr. Yee concluded
that plaintiff was unemployable and would remain so for 12 months or more.
Id.
State agency psychologist Patricia Semmelman, Ph.D., reviewed the
file in October 2009. PAGEID 470-88.
record

documents

a

reading

According to Dr. Semmelman, the

disorder,

bipolar

disorder,

anxiety,

personality disorder with antisocial and borderline features and alcohol

6

addiction disorder. PAGEID 475-82.

Dr. Semmelman opined that plaintiff

was mildly restricted in his activities of daily living; and had moderate
difficulties

in

concentration,

maintaining
persistence

social
and

functioning,

pace.

PAGEID

and
484.

in

maintaining

Dr.

Semmelman

characterized plaintiff’s statements to Mr. Loomis as less than credible
in light of the inconsistent information provided by plaintiff. Considering
all the medical evidence of record, Dr. Semmelman opined plaintiff was able
to perform simple repetitive tasks involving only superficial contact with
others and without strict production standards or fast pace. PAGEID 473.
Plaintiff was assessed at Tri-County Mental Health on March 17, 2010.
PAGEID 504-07.

The intake social worker noted that plaintiff was

cooperative and preliminarily diagnosed generalized anxiety disorder and
social phobia and perhaps ADHD. Although plaintiff reported a previous
diagnosis of bipolar disorder, he described depression but not mania.
According to the social worker, plaintiff’s dependence on alcohol “is
evident” and there may also be an issue of drug use.

PAGEID 506. Counseling

combined with psychiatry was recommended. Id.
Plaintiff began mental health treatment at Six County, Inc., in
November 2010.

PAGEID 526-32. According to Kevin Smyth, LPCC, plaintiff

was disheveled, had a demanding demeanor, intense eye contact, was
agitated,

had

rapid

speech,

grandiose

delusions,

racing

thoughts,

irritable mood, inappropriate affect, and poor insight and judgment. PAGEID
531. Mr. Smyth noted issues with substance use/addiction.

PAGE 529. Mr.

Smyth diagnosed bipolar disorder, most recent episode mixed, severe without
psychotic features; major depressive disorder, recurrent, severe, without
psychotic features; and bipolar I disorder, single manic episode. He

7

assigned a GAF score of 59, which is indicative of moderate symptoms. PAGEID
530.
In March, 2011, Mr. Smyth found plaintiff to be extremely restless, fidgety,
and uncomfortable in public. Plaintiff was described as the “squirmiest
client the counselor had ever seen.” PAGEID 525.
Wheaton B. Wood, M.D., a psychiatrist at Six County, managed
plaintiff’s medications. PAGEID 754-56. On May 2, 2011, plaintiff reported
a history of alcohol and cocaine use and occasional use of marijuana. Dr.
Wood characterized plaintiff as irritable with decreased attention and
flight of thought. PAGEID 755. He questioned whether treatment could help
plaintiff. Id. Dr. Wood diagnosed ADHD, bipolar disorder, antisocial
personality disorder, and polysubstance abuse. Id. In August 2011, Dr. Wood
commented that plaintiff was able to focus more and was sleeping better.
Plaintiff was less agitated and his mood was euthymic.

PAGEID 752-53.

III. Administrative Hearing and Decision
Plaintiff testified at the administrative hearing that the “prime
area” affecting his ability to work is his mental issues. PAGEID 81. He
also has problems with his left ankle, which slows his activities. PAGEID
82-3. He estimated that he could walk ½ hour before his ankle would bother
him. Id. He could sit for only one-half hour at a time. PAGEID 84. He can
lift 10 to 20 pounds.

PAGEID 85. He can drive a car, but he gets aggravated

with other drivers. PAGEID 88-89. He has difficulty with reading and
spelling, but can perform basic math. PAGEID 90. He watches television,
but cannot concentrate on what he watches.

PAGEID 105.

panic attacks, depression, and paranoia. PAGEID 109.

8

He suffers from

The

administrative

law

judge

found

that

plaintiff’s

severe

impairments consist of major depressive disorder, bipolar disorder,
attention

deficit

hyperactivity

disorder

(ADHD),

reading

disorder,

generalized anxiety disorder, social phobia, antisocial personality
disorder, polysubstance dependence in early remission, OCD lesion of the
talus of the medial aspect of the left lower extremity, lumbar strain,
cervical degenerative disc disease, and deafness in his left ear. PAGEID
56. However, the administrative law judge also found that plaintiff’s
severe impairments neither meet nor equal a listed impairment and leave
plaintiff with the following residual functional capacity (“RFC”):
. . . [M]edium work . . . except he is unable to climb ladders,
ropes or scaffolds. He can occasionally crouch, stop, crawl,
and climb ramps and stairs. Additionally, he can frequently
push, pull, and operate foot pedals with his left lower
extremity.
The claimant can frequently push, pull, and
operate levers with the left upper extremity. He must avoid
exposure to hazards such as working around dangerous moving
machinery and working at unprotected heights. He also must
work in an environment that does not require fine hearing
capabilities.
Moreover, the claimant is limited to
performing simple, routine, three-to four-step tasks with no
fast-paced production demands or strict time quotas. He can
interact superficially with supervisors and coworkers, but he
cannot interact with the general public.
PAGEID 58-59.
In determining plaintiff’s RFC, the administrative law judge gave no
weight to either the opinion of Dr. Thomas, the state agency physician who
concluded that plaintiff suffers no severe physical impairment, or the
August 2009 and March 2011 opinions of Dr. Haggenjos, plaintiff’s treating
physician who opined that plaintiff is disabled. PAGEID 63-64. The
administrative law judge gave great weight to the psychological assessment
of Dr. Semmelman, the state agency reviewing psychologist, little weight
to the psychological assessment of Mr. Loomis, the consultative examiner,

9

and little weight to the psychological assessment of Dr. Yee, another
consultative examiner. PAGEID 64.
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, including such jobs as a dishwasher, janitor and
warehouse worker. PAGEID 65-66. Accordingly, the administrative law judge
concluded that plaintiff was not disabled within the meaning of the Social
Security Act from November 30, 2006, through the date of the administrative
law judge’s decision. PAGEID 91-92.
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).
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

10

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 Specific Errors, plaintiff contends that the
administrative law judge failed to examine Dr. Haggenjos’ treating source
opinion for controlling weight and failed to provide good reason for
assigning that opinion little weight.

In particular, plaintiff complains

that the administrative law judge failed to even recognize that the
Department of Job and Family Services physical functional capacity
assessment was Dr. Haggenjos’ assessment. Plaintiff also argues that the
administrative law judge should have given greater weight to the opinions
of Dr. Yee and Mr. Loomis and erroneously gave great weight to Dr.
Semmelman’s non-examining opinion of plaintiff’s mental functioning.
Because the Court finds that the administrative law judge failed to
recognize or evaluate Dr. Haggenjos’ March 2011 medical opinion as that
of a treating physician, the Court concludes that the action must be
remanded to the Commissioner for further proceedings.
As noted supra, the record reflects a March 2011 assessment of
plaintiff’s impairments.

PAGEID 747, 748.

It is apparent to this Court

that this assessment was that of plaintiff’s treating physician, Dr.
Haggenjos.

The opinions of a treating physician must be accorded

controlling weight if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and not “inconsistent with
the other substantial evidence in [the] case record.”
§§404.1527(d)(2), 416.927(d)(2).

20 C.F.R.

If the administrative law judge finds

11

that either of these criteria have not been met, he is then required to
apply the following factors in determining the weight to be given a treating
physician’s opinion: “The length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source.
...”

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

In

this regard, the administrative law judge is required to look at the record
as a whole to determine whether substantial evidence is inconsistent with
the treating physician’s assessment.
416.927(d)(2), (4).

See 20 C.F.R. §§404.1527(d)(2),(4);

Finally, the Commissioner must provide “good reasons”

for discounting the opinion of a treating source, and those reasons must
both enjoy support in the evidence of record and be sufficiently specific
to make clear the weight given to the opinion and the reasons for that
weight.
Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).
Because the administrative law judge did not recognize Dr. Haggenjos’
March 2011 assessment as the opinion of a treating physician, the
administrative law judge did not evaluate that opinion by reference to the
standards required by the Commissioner’s regulations.

Ordinarily, this

failure would require remand to the Commissioner for a proper evaluation
of the opinion.

Rogers v. Commissioner of Social Sec., 486 F.3d 234, 243

(6th Cir. 2007); Wilson, 378 F.3d at 546.
The Commissioner contends that remand is unwarranted in this case,
even assuming that the March 2011 assessment is that of Dr. Haggenjos,
because any failure in this regard amounted to no more than harmless error.
The United States Court of Appeals for the Sixth Circuit recognized in

12

Wilson that reversal may not be required if the failure to explicitly comply
with the regulations has been only de minimis, or harmless error.
378 F.3d at 547.

Wilson,

The Court cautioned, however, that the inquiry cannot

mean merely that the plaintiff “‘had little chance of success on the merits
anyway.’” Id., at 546 (quoting Mazaleski v. Trubell, 562 F.2d 701, 719 n.31
(D.C. Cir. 1977).

Rather, the Sixth Circuit recognized three categories

of cases in which the failure to strictly follow the requirements of the
regulation may not warrant reversal: (1) “If a treating source’s opinion
is so patently deficient that the Commissioner could not possibly credit
it”; (2) “If the Commissioner adopts the opinion of the treating source
and its findings consistent with the opinion”; or (3) “Where the
Commissioner has met the goal of §404.1527(d)(2) -- the provision of the
procedural safeguard of reasons -- even though she has not complied with
the [express] terms of the regulation.”

Id. at 547.

Dr. Haggenjos’ March 2011 report included specific diagnoses,
including past concussive syndrome, cervical, thoracic and lumbar sprain,
high blood pressure, hearing loss, dental problems, COPD, bipolar disorder
and agoraphobia. PAGEID 746. Dr. Haggenjos indicated that plaintiff’s
ability to sit, stand and walk are affected by his impairments, that he
is extremely limited in his ability to push, pull, bend, reach, handle,
hear and engage in repetitive foot movements, and that he can lift and carry
no more than 20 pounds.

PAGEID 747.

This assessment is not “so patently

deficient that the Commissioner could not possibly credit it,” nor can it
be said that the administrative law judge’s findings were “consistent with
the opinion.”

See Wilson at 547.

Moreover, the Court concludes that the administrative law judge’s
evaluation of this assessment did not effectively meet the goal of the

13

regulations. In rejecting the March 2011 assessment, the administrative
law judge stated:
The undersigned finds that this opinion is far too restrictive
and not supported by the medical evidence that includes numerous
normal physical examination findings. It further invades the
providence [sic] of the Commissioner by opining that the
claimant is “unemployable.”
PAGEID 64.

This conclusory evaluation2 fails to provide good reasons for

discounting this treating physician’s assessment; it simply cannot be said
that this reasoning is sufficiently specific to demonstrate the weight
given to this treating provider’s opinion and the reasons for that weight.
See Bass, supra, 499 F.3d at 511. In short, the Court concludes that the
administrative law judge’s failure to properly evaluate Dr. Haggenjos’
March 2011 opinion was not merely harmless error.
It is therefore RECOMMENDED that the decision of the Commissioner be
reversed pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action
be remanded to the Commissioner 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
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

2

The Court recognizes that the ultimate determination of disability is reserved
to the Commissioner. See 20 U.S.C. §§ 404.1527(e); 416.927(e).

14

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: May 8, 2014

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

15