Dellerman v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Katrina L Dellerman. It is RECOMMENDED that the decision of the Commissioner be reversed and that this action be remanded for further consideration of evidence relating to the VA's 2001 disability determination. Objections to R&R due by 8/14/2014. Signed by Magistrate Judge Norah McCann King on 7/28/2014. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KATRINA L. DELLERMAN,
Plaintiff,
vs.

Civil Action 2:13-CV-563
Judge Frost
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I. Introduction and Background
This is an action instituted under the provisions of 42 U.S.C. § 405(g)
for review of a final decision of the Commissioner of Social Security
denying plaintiff’s application for disability insurance benefits.

This

matter is now before the Court on Plaintiff’s Statement of Errors, Doc.
No. 13, and the Commissioner’s Memorandum in Opposition, Doc. No. 16.
Plaintiff Katrina L. Dellerman protectively filed her application for
benefits on May 27, 2010, alleging that she has been disabled since June
1, 2000, as a result of bipolar disorder, migraine headaches, rheumatoid
arthritis, sleep apnea, chronic back pain, knee pain and torn meniscus,
panic attacks in large crowds, and carpal tunnel syndrome.

PageID 215.

The application was denied initially and upon reconsideration, and
plaintiff requested a de novo hearing before an administrative law judge.
An administrative hearing was held, by videoconference, on March 16,
2012. Plaintiff, represented by counsel, testified, as did Cyndee Burnett,
a vocational expert.

In a decision dated March 28, 2012, the

administrative law judge concluded that plaintiff was not disabled at any
time prior to the lapse of her insured status on December 31, 2005.

PageID

69-84.

That decision became the final decision of the Commissioner of

Social Security when the Appeals Council declined review on May 15, 2013.
PageID 62-66.
Plaintiff was 23 years of age on her alleged disability onset date.
PageID 123, 211.
PageID 216.

She has a high school education and one year of college.

She has prior relevant work experience at a home improvement

center and fast food restaurant.

Id.

Plaintiff served in the United

States Navy from March 1995 until June 2000.

Id.

She was last insured

for disability insurance benefits on December 31, 2005. PageID 74, 123.
She did not engage in substantial gainful activity from her alleged
disability onset date of June 1, 2000 through the date that she was last
insured, i.e., December 31, 2005.
II.

Id.

The Evidence of Record
Plaintiff sought mental health treatment from the Veterans

Administration Medical Center (“VA”) beginning October 11, 2000.
993.

PageID

She reported symptoms of depression for the prior 1 ½ years, including

crying, waking 3-4 times per night, poor appetite, poor energy and decreased
motivation.

Id.

Paxil and follow-up treatment were prescribed.

Id.

Progress notes from November 29, 2000 indicated that plaintiff’s depression
and mood swings continued although plaintiff had not yet begun the
prescribed medication.

PageID 990, 992.

On February 22, 2001, plaintiff

reported continued mood swings and depression.

PageID 990.

notes from September 8, 2001, refer to Paxil and Azmacort.

Progress
PageID 983.

Summaries of VA records refer to diagnoses of depressive disorder in
December 2002; migraines, asthma, tendinitis and low back pain in March
2004; and bipolar disorder and hyperlipidemia in 2005.

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PageID 299; PageID

343-347.

Beginning in June 2005, plaintiff also underwent monthly

psychiatric treatment.

PageID 343-347.

However, there are no counseling

session notes or records of clinical observations from that period. Also
included in the VA records is a May 15, 2001 notation referring to a service
connected disability of 100%, with the following “Rated Disabilities”:
MAJOR DEPRESSIVE DISORDER (70%)
LOSS OF FIELD OF VISION (50%)
MIGRAINE HEADACHES (30%)
TINNITUS (30%)
BACK STRAIN (10%)
IMPAIRMENT OF TOES (10%)
TENDON INFLAMMATION (10%)
ASTHMA, BRONCIAL (10%)
SINUSITIS, MAXILLARY, CHRONIC (0%)
OSTEOMALACIA (0%)
LOSS OF MOTION RING OR LITTLE FINGER (0%)
HEMORRHOIDS (0%)
TENDON INFLAMMATION (0%)
OSTEOMALACIA (0%)
PageID 976-77.
At the request of the state agency, the evidence relating to
plaintiff’s mental impairment was reviewed in September 2010, by Jennifer
Swain, Psy.D., and in December 2010 by Ermias Seleshi, M.D.
134.
Id.

PageID 126,

Neither found evidence in the record of a severe mental impairment.
State agency physician W. Jerry McCloud, M.D., reviewed the file in

September 2010, PageID 123-25, and found no evidence of a severe physical
impairment.

PageID 125.

Diane Manos, M.D., reviewed the file in December

2010 and also found insufficient evidence of a severe physical impairment.
PageID 135-136.
VA progress notes from November 30, 2010 include the notation that
plaintiff “has been under the care of the Department of Veterans Affairs
Ambulatory Care Center since September 2002.

Ms. Dellerman is 70% service

connected for her disability, major depressive disorder.”
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PageID 959.

On March 15, 2012, Alicia Hale, M.D., plaintiff’s treating
psychiatrist, reported that plaintiff has been seen by multiple providers,
including psychiatrists, every two to three months.

PageID 997.

Plaintiff’s diagnoses include depression and bipolar disorder, obesity,
migraines, high cholesterol, asthma and sleep apnea.

Id.

According to

Dr. Hale, plaintiff’s impairments, symptoms and limitations have been
present since 1999.

Id.

In a mental capacity evaluation, Dr. Hale opined

that plaintiff had no limitations in carrying out short and simple
instructions and minimal limitations in making simple work related
decisions.

PageID 998.

Plaintiff’s work performance would be impacted

10% of the time by limitations in carrying out detailed instructions,
sustaining an ordinary routine, accepting instructions and responding
appropriately to criticism, and setting realistic goals.

PageID 998-999.

Plaintiff’s ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances, work in
coordination with or in proximity to others without being distracted by
them and completing a normal workday and workweek without interruptions
from psychologically based symptoms, and responding appropriately to
changes in the work setting would be impacted 15% of the day.

Id.

Plaintiff would be off task 20% of the time, would miss more than 5 days
of work per month, and would be 50% less efficient than the average worker.
PageID 999.

Dr. Hale assigned a Global Assessment of Functioning (GAF)1

1

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. A GAF score “represents a ‘snapshot’ of a person’s
‘overall psychological functioning’ at or near the time of the evaluation.”
McGuire v. Comm’r of Soc. Sec., No. 2:12-cv-1084, 2013 U.S. Dist. LEXIS 128959,
at *36 (S.D. Ohio Sept. 10, 2013) (quoting Martin v. Comm’r of Soc. Sec., No.
02-5464, 61 Fed. Appx. 191, 194 n.2 (6th Cir. April 9, 2003)). On a scale of zero
to 100, a GAF score of 51-60 indicates moderate symptoms or “moderate difficulty
in social, occupational, or school functioning[.]” Curler v. Comm’r of Soc. Sec.,

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score of 65, which is indicative of mild symptoms.

PageID 1000.

concluded that plaintiff is not able to “retain” work.

Dr. Hale

Id.

Plaintiff testified at the administrative hearing that she has
received treatment at VA facilities in San Diego, Columbus and Newark
continuously since her separation from the Navy in 2000.

PageID 94-96.

She currently undergoes treatment for both physical and mental problems
at the VA facility in Columbus, Ohio. She was last hospitalized in 2008
in Chillicothe for her mental problem.

PageID 94-95.

She had treated with

Dr. Hale for about a year at the time of the hearing.

Id.

At the time

of the administrative hearing, she was going to the VA four to six times
per month in connection with her psychological impairments.
Her treatment includes medication and psychotherapy.

Id.

PageID 97.

When asked how

her depression and bipolar disorder affect her daily activities, plaintiff
testified that she cannot predict how she will react to certain situations;
she experienced a panic attack on the way to the administrative hearing.
PageID 98.

Her symptoms had been consistent for the prior decade.

Id.

Her medications cause tremors, weight gain and problems with concentration.
PageID 99.

She sleeps about four hours at night and naps for at least two

hours each day.

PageID 100.

Her husband, who is retired from the

military, performs most of the household chores, although her mother
assists in these tasks on a daily basis.
parenting for their young children.

Her husband does most of the

PageID 100-01, 108, 113. Plaintiff

attends church on Sundays and, on occasion, on Wednesdays as well.

PageID

103.
Plaintiff also experiences migraine headaches four or five times per
month, which sometimes last for days.

The headaches cause nausea and she

No. 13-1721, 2014 U.S. App. LEXIS 6202, at *2 n.1 (6th Cir. April 1, 2014) (internal

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must lie down in a dark room.

PageID 101.

She has many days when she cannot

function. PageID 102-03. Her condition has worsened since she left the
military in 2000.

PageID 103.

III. Administrative Decision
In her decision, the administrative law judge found that plaintiff
met the insured status requirements of the Social Security Act through
December 31, 2005. PageID 74.

The administrative law judge also found that

plaintiff had the following medically determinable impairments through the
date last insured: bi-polar disorder, rheumatoid arthritis, asthma,
chronic back pain, and torn meniscus in knee with chronic pain. Id.
However, plaintiff’s hypertension, obstructive sleep apnea, migraine
headaches, chronic fatigue syndrome and hyperlipidemia were not severe
impairments because they did not cause more than minimal limitation in
plaintiff’s ability to perform basic work activities.

PageID 74-75.

There was no evidence that plaintiff’s obesity cause any limitation.
PageID 76.

According to the administrative law judge, plaintiff had no

impairment or combination of impairments that significantly limits her
ability to perform basic work related activities for 12 consecutive months.
PageID 76.

Specifically referring to the VA’s 70% disability award, the

administrative law judge found that this award was made on November 2010,
a decade after plaintiff’s alleged disability onset date and five years
after the lapse of plaintiff’s insured status.

PageID 81.

In finding that

plaintiff had no severe impairment prior to the lapse of plaintiff’s insured
status, the administrative law judge gave “substantial or significant
weight” to the opinions of the state agency reviewing physicians, Drs.
Seleshi, Swain, McCloud and Manos,

PageID 83, and “very little weight”

quotation marks and citations omitted).

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to Dr. Hale’s opinion, finding that Dr. Hale had not had a treatment
relationship with plaintiff for the decade prior to rendering the opinion,
that the medical record did not support her opinion and that Dr. Hale had
assigned a GAF score of 65.

PageID 82. The administrative law judge also

found that plaintiff’s testimony and subjective complaints were not fully
credible.
IV.

PageID 81-82.

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

decision is limited to determining whether the findings of the
administrative law judge are supported by substantial evidence and employed
the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971).

Substantial evidence is more than a scintilla of evidence but less than
a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.

See Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001); Kirk v. Secretary of Health & Human Servs., 667
F.2d 524, 535 (6th Cir. 1981).

This Court does not try the case de novo,

nor does it resolve conflicts in the evidence or questions of credibility.
See Brainard v. Secretary of Health & Human Servs., 889 F.2d 679, 681 (6th
Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this Court must
examine the administrative record as a whole. Kirk, 667 F.2d at 536. If
the Commissioner’s decision is supported by substantial evidence, it must
be affirmed even if this Court would decide the matter differently, see
Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if
substantial evidence also supports the opposite conclusion.
Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).

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Longworth v.

In her Statement of Errors, plaintiff contends that the
administrative law judge erred in her consideration of plaintiff’s VA
disability award.

This Court agrees. The United States Court of Appeals

for the Sixth Circuit has not specified the particular weight to be given
to the VA’s % disability determinations.

LaRiccia v. Comm’r of Soc. Sec.,

No. 12-4198, 549 Fed. Appx. 377, at *387 (6th Cir. Dec. 13, 2013) (citing
Stewart v. Heckler, 730 F.2d 1065 (6th Cir. 1984)).

The applicable Social

Security regulation provides that another governmental agency’s
determination is not binding on the Commissioner:
A decision by any nongovernmental agency or any other
governmental agency about whether you are disabled or blind is
based on its rules and is not our decision about whether you are
disabled or blind. We must make a disability or blindness
determination based on social security law. Therefore, a
determination made by another agency that you are disabled or
blind is not binding on us.
20 C.F.R. § 404.1504.

However, such a finding may be relevant to the

determination of the Social Security Administration. See, e.g., LaRiccia,
549 Fed. Appx. 377, at *388; King v. Comm’r of Soc. Sec., 779 F. Supp.2d
721, 725-26 (E.D. Mich. Mar. 28, 2011). “Regardless of the weight afforded,
an ALJ ‘should explain the consideration given to these [agency] decisions
in the notice of decision.’”

LaRiccia, 549 Fed. Appx. 377, at *388 (quoting

SSR 06-03p, 2006 SSR LEXIS 5, at *18 (Aug. 9, 2006)).

Accordingly, courts

have remanded cases where, inter alia, the administrative law judge failed
to properly weigh the agency decision or to articulate proper reasons for
rejecting such a decision.

See, e.g., LaRiccia, 549 Fed. Appx. 377, at

*388 (remanding where the administrative law judge “erred by discounting
the VA assessment because it included conditions not deemed severe in the
social security context” and where the administrative law judge
inaccurately appeared to suggest “that each condition considered by the
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VA must be totally disabling, standing alone, for the VA assessment to be
relevant”); Orr v. Comm’r of Soc. Sec., No. 13-cv-346, 2014 U.S. Dist. LEXIS
99425, at *17 (S.D. Ohio July 21, 2014) (“While the ALJ briefly addressed
the VA decision, given the fact that the VA found Plaintiff 100% disabled,
the Court finds that the ALJ did not properly weigh the finding of
disability.”);

McGrew v. Colvin, No. 13-cv-118, 2014 U.S. Dist. LEXIS

48454, at *30 (S.D. Ohio Apr. 8, 2014) (remanding where, inter alia, the
administrative law judge failed to explain consideration of the VA
disability rating); King, 779 F. Supp.2d at 726 (remanding case “for further
consideration of the evidence in light of a better-developed record of the
VA disability determination” where the administrative law judge “did not
explain whether she accorded any weigh[t] to [the VA’s determination] and
if not why not”).
In the case presently before the Court, the administrative law judge
referred to a 2010 disability determination by the VA:
Interestingly, the claimant has received a 70% disability award
from the Veteran’s Administration based on her mental and
physical issues. (Exh. 5F, p. 134 [PageID 959]) While I noted
that this was significant, unfortunately, this was not attained
until November 2010, 10 years after her alleged onset date and
5 years after the claimant’s date last insured. Although there
was significant evidence of disabling impairments, there was no
indication that these impairments impacted the claimant to such
a degree prior to her date last insured. Because this is a Title
II only case, this eliminated the claimant’s ability to attain
benefits under this program.
PageID 81.

Citing PageID 976, plaintiff insists that the record

establishes a 100% disability determination by the VA since at least 2001.
According to plaintiff, the administrative law judge’s failure to refer
to this exhibit “suggests that the ALJ may not have considered this Exhibit
[VA record dated 2001 finding plaintiff 100% disabled] which was filed
shortly before the hearing.”

Statement of Errors, p. 5.
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Plaintiff

further argues that the November 2010 note relied upon by the administrative
law judge merely confirmed plaintiff’s long-term treatment at the VA and
did not even purport to establish the date on which the VA found her to
be disabled.

Id. at 4.

There is no evidence that the administrative law judge considered the
2001 reference to a VA service-connected disability determination.
PageID 81, 976-977.

See

As discussed supra, an administrative law judge’s

failure to properly address and weigh a VA determination, even though the
determination may ultimately be rejected, warrants remand.

See, e.g.,

Orr, 2014 U.S. Dist. LEXIS 99425, at *17; McGrew, 2014 U.S. Dist. LEXIS
48454, at *30; Rothgeb v. Comm’r, 626 F. Supp.2d 797, 809-810 (S.D. Ohio
2009) (“The ALJ erred in failing to consider the Veteran Administration’s
decision to grant Plaintiff complete disability status.

The ALJ was not

bound by the decision of the Department of Veterans Affairs.

However, he

at least should have considered the decision and articulated his reasons
for rejecting it.”) (internal citations omitted)

Cf. LaRiccia, 549 Fed.

Appx. 377, at *388 (remanding where, inter alia, the administrative law
judge erred in its analysis when rejecting a VA determination).
The Commissioner discounts the significance of this exhibit, PageID
976-979, Memorandum in Opposition, p. 15,

noting that the exhibit is not

signed by a doctor or government official and is not on VA letterhead.

Id.

However, the administrative record available to the administrative law
judge includes this exhibit, which is identified as “Office Treatment
Records, dated 02/23/2001 to 06/13/2001, from VA.”

See Doc. No. 12-9.

Accordingly, the Commissioner’s own filing establishes that the reference
to a 100% service-connected disability in 2001 came from the VA.

10

The Commissioner also argues that “the service connected disability
is not noted in many other records from the VA”; that plaintiff fails to
explain why she waited until 2010 to apply for social security disability
benefits if she was determined to be disabled in 2001; and that, in any
event, an alleged VA determination in 2001 is not binding on the
administrative law judge or the Social Security Administration.
Memorandum in Opposition, pp. 15-16. However, it is for the administrative
law judge, not this Court, to determine the relevance and weight of this
evidence. There is simply no indication in the record that the
administrative law judge even considered this evidence.

See, e.g.,

LaRiccia, 549 Fed. Appx. at *388; Rothgeb, 626 F. Supp.2d at 810.

The Court

therefore concludes that remand of the action is warranted.
Having so concluded, the Court need not, and does not, address
plaintiff’s challenge to the administrative law judge’s evaluation of the
opinions of plaintiff’s treating physician, Dr. Hale, or plaintiff’s
assertion that the administrative law judge’s decision is internally
inconsistent and incomprehensible.
It is therefore RECOMMENDED that the decision of the Commissioner be
REVERSED and that this action be REMANDED, pursuant to Sentence 4 of 42
U.S.C. § 405(g), for further consideration of evidence relating to the VA’s
2001 disability determination.
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);

11

F.R. Civ. P. 72(b).

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).

July 28, 2014

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

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