Crabtree v. Commissioner of Social Security
Filing
16
REPORT AND RECOMMENDATIONS that Plaintiff's 12 Statement of Specific Errors be overruled & that judgment be entered in favor of the Commissioner. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 5/13/2014. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sherman W. Crabtree,
:
Plaintiff,
:
v.
:
Case No. 2:13-cv-711
:
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Commissioner of Social Security,
:
Defendant.
REPORT AND RECOMMENDATION
I.
Introduction
Plaintiff, Sherman W. Crabtree, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his applications for disability insurance benefits and
supplemental security income.
Those applications were filed on
September 30, 2009, and alleged that Plaintiff became disabled on
January 1, 2008 (later amended to December 1, 2009).
After initial administrative denials of his applications,
Plaintiff was given a videoconference hearing before an
Administrative Law Judge on January 5, 2012.
January 25, 2012, the ALJ denied benefits.
In a decision dated
That became the
Commissioner’s final decision on June 5, 2013, when the Appeals
Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on September 30, 2013.
Plaintiff filed
his statement of specific errors on November 4, 2013.
Commissioner filed a response on January 6, 2014.
The
No reply brief
has been filed, and the case is now ready to decide.
II.
Plaintiff’s Testimony at the Administrative Hearing
Plaintiff, who was 36 years old at the time of the
administrative hearing and had graduated from high school (but in
special education courses from the eighth to the twelfth grades),
testified as follows.
His testimony appears at pages 40-59 of
the administrative record.
Plaintiff was first asked about his past work.
He said all
of his jobs had lasted only a month or two, after which he would
quit based on his belief that he could not do the job.
Often he
got warnings about not being able to keep up before he quit,
although the last job he left was a stocker for Wal-Mart and he
had transportation problems that forced him to quit.
He had
difficulties with that job, too.
In April, 2009, he sought treatment at Tri-County Mental
Health due to suicidal thoughts.
He went to counseling for about
a year but again had transportation issues, causing a six-month
break in treatment.
At the time of the hearing, he was seeing
counselors frequently and a doctor every six months.
He
described daily depression and frequent suicidal thoughts.
Plaintiff also reported some physical problems with his hip and
back.
As far as psychological symptoms were concerned, Plaintiff
testified to mood swings, outbursts of anger, and crying spells.
He was uncomfortable in large crowds and thought that his nerves
prevented him from working.
On the physical side, Plaintiff was
having pain in his right leg which limited his ability to sit for
more than an hour.
He could walk half a mile.
His lifting was
limited to ten or twenty pounds.
In response to questions from the Administrative Law Judge,
Plaintiff said that he had worked as a stocker in a grocery store
for about three years but his “brain told me that I couldn’t do
it” any longer and he quit.
to the grocery store.
sweeping, and laundry.
He had a driver’s license and drove
He did household chores such as cleaning,
He had never gone to vocational
rehabilitation, and no one had ever told him he was not able to
-2-
work.
III.
The School and Medical Records
The school and medical records in this case are found
beginning on page 252 of the administrative record.
The
pertinent records - those relating to Plaintiff’s psychological
condition, since that is the only issue raised in his Statement
of Errors - can be summarized as follows.
Plaintiff graduated from high school in 1994.
His report
card shows that he was in LD classes but did well, especially in
his senior year, although he failed a number of the ninth grade
proficiency tests (he passed holistic writing and citizenship).
The first psychological record in the file is a Mental
Functional Capacity Assessment which is not signed by anyone (but
contains, at the bottom, the names of both Sabrina D. Morris,
PCC-S, and Terry R. Hayes, Ph.D., Supervising Psychologist). (Tr.
260).
The form, found under a page which says “Welfare
Functional Capacity Assessment and Mental Status Exam 12.1.09 - 3
Pages” (Tr. 259), indicates that the last time Plaintiff was
examined (apparently by Ms. Morris) was on December 1, 2009.
Whoever completed this form concluded that Plaintiff had marked
limitations in almost every work-related function and that he was
unemployable.
Immediately after the form, there is a two-page
examination note from Ms. Morris, described as a Professional
Clinical Counselor, dated December 1, 2009.
In her note, Ms.
Morris assigned Plaintiff a GAF of 60, indicating “Serious
Symptoms in Some Areas of Functioning,” based on diagnoses of
major depressive disorder, recurrent, moderate, without psychotic
features, and borderline intellectual functioning.
She reported
his problems with occupational functioning as “Sherman states
that he does not believe that he can work because ‘I have the
mind of a child.’” (Tr. 261-62).
Next, the record contains assessment notes from Tri-County
-3-
Mental Health and Counseling Service, Inc., showing that
Plaintiff was diagnosed with a dysthymic disorder and, when he
began counseling, had a GAF of 45.
At that time, he was
complaining of depression and anxiety.
suicidal thoughts.
He was isolated and had
He said he left employment at Wal-Mart
because he was going to be moved to a cashier position and did
not have the math skills to do that job.
Later notes show that
he was terminated from counseling on June 1, 2010, for missing
numerous appointments due to transportation problems.
(Tr. 261-
81).
Dr. Reece, a psychologist, conducted a consultative
examination on December 10, 2009.
Plaintiff reported having no
friends and no social activities.
He said that he suffered from
bad nerves and depression.
He did not report difficulties
getting along with supervisors or coworkers when he was employed.
Dr. Reece noted that Plaintiff’s prevailing mood was “mildly
anxious and dysphoric.”
Plaintiff described feeling worthless,
hopeless, helpless, and full of guilt.
His thought process was
slow and his ability to abstract similarities was fair to poor.
He had problems managing money.
at 67.
His full scale IQ was measured
Dr. Reece diagnosed a depressive disorder and borderline
intellectual functioning.
He assigned a GAF score of 60.
He
thought that Plaintiff was mildly impaired in his ability to
relate to others, to follow instructions, to perform simple
repetitive tasks, and to withstand ordinary work stress.
(Tr.
282-86).
Dr. Tangeman, also a psychologist, reviewed the records and
expressed an opinion as to Plaintiff’s mental residual functional
capacity.
He thought that Plaintiff had moderate restrictions in
his ability to understand detailed instructions, to maintain
attention and concentration for extended periods, to get along
with others, and to complete a normal workday and workweek
-4-
without interruption from psychologically-based symptoms and to
perform at a consistent pace without an unreasonable number and
length of rest periods.
In the narrative portion of the form,
Dr. Tangeman said that Plaintiff could do 3- to 4-step tasks in a
static work environment without strict production quotas, pace or
standards, and “would benefit” from superficial interactions with
others.
(Tr. 288-305).
Plaintiff resumed counseling at Tri-County in November,
2010.
The diagnostic assessment form created at that time
recited that Plaintiff continued to be depressed and anxious,
with occasional suicidal thoughts.
He did state that if he got a
job, he was afraid he would lose his medical card and would not
be able to afford insurance.
He was assigned a GAF score of 45
based on a diagnosis of major depressive disorder, rule out
dysthymic disorder, generalized anxiety disorder, and mental
retardation (severity unspecified).
(Tr. 319-29).
It appears that Plaintiff’s first appointment with his
psychiatrist, Dr. Jones, took place on February 2, 2011.
report of symptoms was unchanged.
His
Plaintiff’s speech was clear
and coherent; he was oriented and appeared depressed but not
anxious.
He met the criteria for major depression.
Dr. Jones
rated Plaintiff’s GAF at 55 and prescribed medication in addition
to continued counseling.
(Tr. 337-40).
Later reports show that
Plaintiff experienced headaches from the medication but was
otherwise doing “okay.”
headaches.
He did seek emergency room treatment for
A note from July, 2011, indicated that he had not had
headaches for a while and that his suicidal thoughts had become
much less frequent.
(Tr. 403).
IV.
The Vocational Testimony
A vocational expert, Kenneth Ogren, also testified at the
administrative hearing.
His
testimony begins at page 59 of the
record.
-5-
Mr. Ogren testified that Plaintiff’s past work as a stock
clerk was a medium, semi-skilled job.
the same.
The factory work job was
Mr. Ogren was then asked some questions about a
hypothetical person who could work at any exertional level, but
who had reading and math skills at the 10th grade level and
written language skills at the 7th grade level.
That person could
perform only simple routine tasks in a static environment with no
fast paced production requirements and only superficial
interactions with others.
According to Mr. Ogren, someone with
those restrictions could not perform Plaintiff’s past relevant
work but could perform unskilled jobs like cuff folder, polisher,
or inspector.
Those jobs could be done by someone who was
restricted to work at the light exertional level with a number of
postural limitations.
However, if the person had more
significant mental limitations, such as being unable to maintain
attention or concentration for extended periods, to keep a
schedule, to be punctual, to sustain an ordinary work routine
without special supervision, to make simple work-related
decisions, to complete a normal workday or week without
interruption from psychologically-based symptoms, or to perform
at a consistent pace without an unreasonable number of rest
periods (plus several others set forth in the question asked by
the ALJ), that person could not work.
V.
(Tr. 63-64).
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 1327 of the administrative record.
The important findings in that
decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured requirements for disability benefits through June
30, 2011.
Next, Plaintiff had not engaged in substantial gainful
activity from December 1, 2009 forward.
As far as Plaintiff’s
impairments are concerned, the ALJ found that Plaintiff had
-6-
severe impairments including lumbar radiculitis, obesity,
depression, anxiety and borderline intellectual functioning.
The
ALJ also found that these impairments did not, at any time, meet
or equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at the light exertional level with these
restrictions: he could never climb ladders, ropes, or scaffolds;
he could stoop, kneel, crouch, or crawl only occasionally; and he
could perform only simple, routine tasks in a static environment
with no fast-paced production pace and with only superficial
interaction with others.
The ALJ found that, with these
restrictions, Plaintiff could not perform his past relevant work,
but he could perform the jobs identified by Mr. Ogren and that
such jobs existed in significant numbers in the State and
national economies.
Consequently, the ALJ concluded that
Plaintiff was not entitled to benefits.
VI.
Plaintiff’s Statement of Specific Errors
In his statement of specific errors, Plaintiff raises a
single issue.
He contends that the ALJ erred in granting the
opinion of Dr. Hayes little weight, arguing that the reasons
given by the ALJ for that decision are not supported by the
record and that the applicable regulatory factors required that
the opinion be given substantial weight.
The Court analyzes this
claim under the following standard.
Standard of Review.
Under the provisions of 42 U.S.C.
Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."
Substantial evidence is
"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'"
-7-
Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).
It is "'more than a mere
LeMaster v. Weinberger, 533 F.2d 337, 339 (6th
The Commissioner's findings of fact must be based
upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435
(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).
In determining whether the Commissioner's decision is
supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).
Even if this Court
would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.
Kinsella v. Schweiker, 708
F.2d 1058, 1059 (6th Cir. 1983).
As in any case where the sufficiency of the ALJ’s decision
to reject a medical opinion is at issue, the Court begins with a
fairly detailed summary of the ALJ’s reasoning.
This is what he
said on the subject.
After reviewing the pertinent evidence, including Ms.
Morris’ note, the 2010 records from Tri-County, Dr. Reece’s
consultative examination report, Dr. Jones’ assessment, and Dr.
Jones’ later notes, the ALJ observed that Plaintiff “admitted
that he has developed coping mechanisms to improve mental health
symptoms and routine counseling provides good relief” and that
“medications have been relatively effective in controlling the
claimant’s symptoms.”
(Tr. 23).
He then discussed the opinion
evidence, giving great weight to the opinion of Dr. Tangeman as
being “consistent with the record as a whole ... which contains
-8-
only routine mental health treatments and mental status
evaluation results that are not severe.”
He gave somewhat lesser
weight to Dr. Reece’s evaluation, commenting that it understated
Plaintiff’s limitations and observing that Dr. Tangeman had
access to a greater longitudinal record of treatment than did Dr.
Reece.
“Very little weight,” however, was given to the opinions
of the treating sources because their opinions, found in Exhibits
3F and 9F (both are treatment or diagnostic assessment notes from
Tri-County) “overstated the claimant’s limitations.”
Finally,
the assessment sheet completed by either Ms. Morris or Dr. Hayes
was given little weight; the ALJ noted that it was prepared for
purposes of a welfare and food stamp evaluation, and that there
were few, if any, treatment records showing the presence of
marked limitations.
(Tr. 24-25).
It is important to note, at the outset, that there is no
evidence that Dr. Hayes ever treated or even examined Plaintiff.
Plaintiff asserts in his Statement of Errors (Doc. 12, at 5),
that Dr. Hayes “apparently” based his assessment on Ms. Morris’
examination notes, and the record does support that inference.
Consequently, the “treating source” rules do not apply here, and
the question is simply whether the record contains substantial
support for the ALJ’s decision to give little weight to Dr.
Hayes’ assessment.
The error which, according to Plaintiff, the ALJ committed
was to disregard “a substantial portion of the evidence [which]
supports the opinion of Dr. Hayes ....”
Id. at 9.
Plaintiff
goes on to point out the initial Tri-County assessment, which
assigned him a GAF score of 45; Dr. Reece’s evaluation, which
revealed low IQ scores and slowness in response to questions; the
second Tri-County assessment, which also assigned a GAF score of
45; and Dr. Jones’ notes, which included a diagnosis of mental
retardation and a GAF score of 55.
Plaintiff then analyzes the
pertinent factors for assessing a non-treating medical source
-9-
opinion, see, e.g., 20 C.F.R. §404.1527(c), and, while conceding
that Dr. Hayes never examined or treated Plaintiff, argues that
Dr. Hayes’ views were supported by Ms. Morris’ examination note,
were consistent with “a great deal of evidence in the file,”
including the various GAF scores, and were expressed by a source
with the proper qualifications.
Id. at 11-12.
For those
reasons, Plaintiff contends that the ALJ should have given Dr.
Hayes’ opinions more weight.
As the Commissioner points out in response to this argument,
Plaintiff’s primary contention, reduced to its essence, is either
that the ALJ should have evaluated the evidence differently, or
that substantial evidence would have supported a different
outcome.
Neither of those arguments has any legal merit.
As this Court has said on numerous occasions, “‘[w]hen
deciding under 42 U.S.C. §405(g) whether substantial evidence
supports the ALJ's decision, we do not try the case de novo,
resolve conflicts in evidence, or decide questions of
credibility.’”
Jones v. Comm’r of Social Sec., 2012 WL 5378850,
*5 (S.D. Ohio Oct. 30, 2012)(quoting Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007)), adopted and affirmed 2013 WL 556208
(S.D. Ohio Feb. 12, 2013).
“As the Court of Appeals observed in
Mullins v. Sec'y of HHS, 836 F.2d 980, 984 (6th Cir. 1987), ‘the
weight to be given opposing medical opinions ... is clearly not a
basis for our setting aside the ALJ's factual findings.’
If the
ones chosen by the ALJ find ‘ample support in the record,’ id., a
reviewing court may not disturb them.”
Johnson v. Comm’r of
Social Sec., 2013 WL 6062147 (S.D. Ohio Nov. 18, 2013).
And
“[e]ven if this Court would reach contrary conclusions of fact,
the Commissioner's decision must be affirmed so long as that
determination is supported by substantial evidence.
Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983).”
Kinsella v.
Gossett v.
Comm’r of Social Sec., 2013 WL 6632056, *5 (S.D. Ohio Dec. 17,
2013), adopted and affirmed 2014 WL 49818 (S.D. Ohio Jan. 7,
-10-
2014).
Here, Plaintiff’s argument completely disregards other
evidence in the record which supports the ALJ’s findings.
Dr.
Reece, who, unlike Dr. Hayes, actually examined Plaintiff (and
did so just nine days after Dr. Hayes’ checklist of limitations
was prepared), found only mild restrictions in Plaintiff’s
ability to function in all relevant work areas.
Both Dr. Reece
and Ms. Morris assigned Plaintiff a GAF of 60, which would
generally be inconsistent with a host of marked impairments.
Dr.
Tangeman, who is also a psychologist and who was in the same
position as Dr. Hayes to make an assessment - he also did not
examine or treat Plaintiff - reached contrary conclusions, and,
unlike Dr. Hayes, he had the benefit of additional records to
review.
The treatment notes, while not containing much
discussion of Plaintiff’s functional limitations, do refer to
some improvement in Plaintiff’s condition once he began taking
medication - that is in Dr. Jones’ last note - and they do not
contain any strong or irrefutable evidence of significant
deficits in functioning.
There is also direct evidence
contradicting some of Dr. Hayes’ findings; for example, Dr. Hayes
indicated that, in the area of social interaction, Plaintiff had
one moderate impairment and four marked impairments, but
Plaintiff told Dr. Reece (again, only nine days later) that he
had no problems getting along with coworkers and supervisors.
(Tr. 283).
Given that both Dr. Tangeman and Dr. Hayes were nontreating, non-examining sources with psychological expertise, and
that there are factors in the record which reasonably supported
portions of both of their assessments - although there is a
fairly sparse amount which shows limitations of the number and
severity described by Dr. Hayes - it was for the ALJ to determine
which opinion to give the greater weight.
Since his decision to
rely more heavily on Dr. Tangeman is a choice that a reasonable
-11-
person, reviewing the same evidence, could have made, this Court
lacks the authority to substitute its judgment for that of the
ALJ, even if it would have reached a different conclusion although the Court does not have to decide that question, since
it is irrelevant to a “substantial evidence” review.
“In
deciding whether to affirm the Commissioner's decision, it is not
necessary that this court agree with the Commissioner's finding,
as long as it is substantially supported in the record.”
Rogers
v. Comm'r of Social Security, 486 F.3d 234, 241 (6th Cir. 2007).
For these reasons, it will be recommended that the ALJ’s decision
be upheld.
VII.
Recommended Decision
Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that the Court
enter judgment in favor of the defendant Commissioner of Social
Security.
VIII.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions
of the report or specified proposed findings or
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
-12-
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
-13-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?