Conger v. Commissioner of Social Security
Filing
23
OPINION AND ORDER: Plaintiff's 14 Statement of Specific Errors is OVERRULED, and the Commissioner of Social Security's decision is AFFIRMED. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/28/2014. (mas1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHEENA M. CONGER,
Plaintiff,
Civil Action 2:13-cv-811
Magistrate Judge Elizabeth P. Deavers
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Sheena M. Conger, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her
application for social security disability insurance benefits and supplemental security income.
This matter is before the Court for consideration of Plaintiff’s Statement of Errors (ECF No. 14),
the Commissioner’s Memorandum in Opposition (ECF No. 19), Plaintiff’s Reply (ECF No. 20),
and the administrative record (ECF No. 12). For the reasons that follow, the Court
OVERRULES Plaintiff’s Statement of Errors and AFFIRMS the Commissioner’s decision.
I.
BACKGROUND
Plaintiff filed her application for benefits on July 12, 2010, alleging that she has been
disabled since September 30, 2007, at age 24. (R. at 62.) Plaintiff alleges disability as a result of
major depression, agoraphobia, and anxiety. (Id.) Plaintiff’s application was denied initially and
upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge
(“ALJ”). ALJ Christopher B. McNeil held a hearing on February 16, 2012, at which Plaintiff,
1
represented by counsel, appeared and testified. (R. at 33-61.) George Coleman, a vocational
expert, also appeared and testified at the hearing. (R. at 53-60.) On March 27, 2012, the ALJ
issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security
Act. (R. at 13-29.) On July 11, 2013, the Appeals Council denied Plaintiff’s request for review
and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1-5.) Plaintiff then
timely commenced the instant action.
II. HEARING TESTIMONY
A.
Plaintiff’s Testimony
At the February 16, 2012 hearing, Plaintiff testified that she completed some, but not all,
of ninth-grade. (R. at 41.) Plaintiff noted that she tried to obtain her GED, failed, and has not
completed any other educational or job training since. (R. at 41-42.) Plaintiff testified that her
driver’s license was suspended for failing to pay child support and noted that her mother drove
her to the hearing. (R. at 42.) Plaintiff indicated that she had never been fired from a job, but
would frequently get anxious and leave jobs suddenly. According to Plaintiff, the longest job
she held was the year she spent at Dairy Queen, where she was promoted to manager. (R. at 43.)
Plaintiff testified that she had been diagnosed with depression, bipolar, and anxiety. (R.
at 44.) She indicated that Xanax helps with panic attacks and Seroquel helps her to sleep at
night. (R. at 45, 47.)
Plaintiff testified that she lives with her boyfriend and three of his four children. (R. at
52.) Plaintiff indicated that she gets her children on the weekends during the school year and
during the summer. (R. at 53.) She noted that, due to her depression, she sleeps frequently, is
not motivated, and does not like leaving the house. Plaintiff testified that she does not often
2
grocery shop, because she gets panic attacks at the stores. She indicated that she bathes and
changes her clothes every day, but sometimes stays in bed all day. (R. at 46.) Plaintiff noted
that she tries to clean her house at least once per week, but wishes she could do more. (R. at 47.)
She testified that she makes impulsive decisions. Plaintiff also revealed that she has smoked
marijuana in the past and was on cocaine and pain pills when she was twelve or thirteen. (R. at
50-51.)
B.
Vocational Expert Testimony
George W. Coleman testified as the vocational expert (“VE”) at the administrative
hearing. (R. at 53-60.) The VE testified that Plaintiff’s past relevant work was as an ice-cream
dispenser at the light exertional level. (R. at 55-56.)
The ALJ asked the VE whether a hypothetical individual of Plaintiff’s education and past
relevant work had the functional capacity to perform Plaintiff’s past relevant work with the
following non-exertional limitations: the individual cannot understand and remember simple
instructions, can sustain attention to simple repetitive tasks where production quotas are not
critical, with limited and superficial interpersonal demands in a non-public and static work
setting with only routine changes. (R. at 56-57.) Based on the above hypothetical, the VE
acknowledged that Plaintiff could not perform her past relevant work as an ice-cream dispenser
because of the interaction with public and co-workers. The VE noted, however, that a
hypothetical individual with those limitations could likely perform a number of jobs, including a
laundry aid, with 1,211 regional jobs and 239,950 national jobs; a router or routing clerk, with
3,113 regional jobs and 450,460 national jobs; and a warehouse checker, with 260 regional jobs
and 66,480 national jobs. (R. at 57.) The VE further testified that an individual who was off
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task 25-30% of the time, or who was markedly impaired in her ability to maintain attention and
concentration, perform work activities in a schedule, and maintain regular attendance would not
be able to work competitively.
III.
A.
MEDICAL RECORDS AND OPINIONS
Six County, Inc.
Plaintiff began treatment at Six County, Inc., on August 9, 2007, after she was admitted
to the emergency room for saying she planned to kill herself. (R. at 323-350.) She initially saw
Billy R. Hunter, M.D., who diagnosed Plaintiff with major depressive disorder. (R. at 241.) Dr.
Hunter noted that Plaintiff felt hopeless and had no energy, but her memory appeared intact and
her insights and judgments were fair. He continued Plaintiff’s prescription for Prozac.
Plaintiff returned on October 24, 2007, and saw Nurse Practitioner Danine LajinessPolosky. (R. at 238-39.) Plaintiff reported that she was doing much better on Paxil and was not
nearly as depressed. She indicated, however, that the medication she was taking for her panic
attacks (Buspar) was not helping. Nurse Practitioner Lajiness-Polosky noted that Plaintiff was
pleasant, cooperative, and interested in educating herself and her boyfriend about her condition.
(R. at 238.) She diagnosed Plaintiff with anxiety disorder and replaced Plaintiff’s prescription
for Buspar with one for Xanax.
Plaintiff saw Nurse Practitioner Lajiness-Polosky again on November 21, 2007. (R. at
236-37.) Plaintiff indicated that the Xanax was helping with her anxiety disorder. At her
January 22, 2008 appointment, Nurse Practitioner Lajiness-Polosky noted that Plaintiff was
doing well, had good insight, and was pleasant and cooperative. She started Plaintiff on
Cymbalta, and continued Plaintiff’s prescriptions for Paxil and Xanax. (R. at 234.)
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Plaintiff first saw Thomas Vajen, M.D. on April 2, 2008. (R. at 233.) Plaintiff reported
that she had been more depressed recently and was not sleeping well. Dr. Vajen noted that
Plaintiff was alert and cooperative. He prescribed Seroquel to help Plaintiff sleep. At her next
visit on May 8, 2008, Plaintiff reported her depression was better and she was sleeping well on
Seroquel. On October 22, 2008, Plaintiff indicated that she was doing reasonably well and had
passed the GED pre-test. (R. at 231.) Dr. Vajen noted that Plaintiff would soon be gainfully
employed.
At her February 5, 2009, appointment, Plaintiff indicated that she had passed her GED
other than the math portion and that she was doing well, but was under a lot of stress. (R. at
230.) Dr. Vajen continued her prescriptions for Seroquel, Xanax, and Cymbalta. Plaintiff
returned for follow-up on May 13, 2009 and indicated that she was doing very well and had
mostly good days. Plaintiff noted that her medicine adjustments had been positive and her panic
attacks had decreased since she cut down on caffeine. (R. at 229.) Plaintiff made a similar
report at her August 19, 2009 appointment. (R. at 228.)
On November 5, 2009, Dr. Vajen noted that Plaintiff had her “usual, bubbly personality,”
despite having to stop driving the day before due to a panic attack. (R. at 227.) On February 4,
2010, Dr. Vajen noted that Plaintiff had done reasonably well but was under significant stress.
(R. at 226.) He prescribed Seroquel, Abilify, and Xanax but decreased her dose of Cymbalta.
Plaintiff returned for a follow-up visit on July 22, 2010. (R. at 351.) She indicated that she had
lost her medical card and was unable to buy her prescription medication. Dr. Vajen gave her
samples for Seroquel and Abilify and changed her Cymbalta prescription to Celexa.
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On October 21, 2010, Plaintiff indicated that she was doing well and working on her GED. (R.
at 371.) On January 14, 2011, Plaintiff reported stress and crying spells following her divorce.
(R. at 369.)
Dr. Vajen completed a Mental Residual Functional Capacity (“MRFC”) form on
September 21, 2011. In the form, Dr. Vajen concluded that Plaintiff had marked limitations in
all areas of social interaction, except for her ability to relate to the general public, in which he
determined she was extremely limited. (R. at 382.) He also found that Plaintiff was markedly
limited in all areas of sustained concentration and persistence and adaptation. (R. at 383-84.)
C.
Keli A. Yee, Psy.D.
Dr. Yee examined Plaintiff on September 16, 2010. (R. at 357-367.) Dr. Yee determined
that Plaintiff would benefit from continued medication management, but at the time was a “poor
candidate for being able to sustained remunerative employment.” (R. at 363.) Dr. Yee
completed a MRFC assessment form, in which she found Plaintiff to be markedly limited in her
ability to maintain attention and concentration to perform tasks within a schedule and maintain
regular attendance, and complete a normal work day. (R. at 366.) She concluded that Plaintiff
was moderately limited in fourteen of the twenty areas on the assessment form. In a letter to
Plaintiff’s counsel, Dr. Yee explained that a moderate limitation is one in which the individual
would be off task approximately 25-35% of the time. (R. at 367.)
D.
State Agency Evaluations
On September 8, 2010, State-Agency psychologist Marianne Collins, Ph.D., completed a
residual functional capacity analysis for Plaintiff. (R. at 62-81.) Dr. Collins opined that Plaintiff
was moderately limited in the ability to: (1) understand and remember detailed instructions; (2)
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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) complete a normal workday and workweek without interruptions from
psychologically based symptoms; (6) interact appropriately with the general public; (7) accept
instructions and respond appropriately to criticism from supervisors; and (8) respond
appropriately to changes in the work setting. In the narrative section of the assessment form, Dr.
Collins noted that Plaintiff does well on medication, demonstrates the ability to act appropriately
with her counselor and others, and has the ability to work in a predictable and routine
environment in which she has superficial interaction with the general public. Dr. Collins further
noted that Plaintiff has the ability to set realistic goals and make plans independently.
Carl Tishler, Ph.D., completed a review of Plaintiff’s records for the State Agency on
November 1, 2010. (R. at 84-97.) He opined that Plaintiff was moderately limited in her ability
to understand and remember detailed instructions, but that she retained the ability to remember
and understand simple instructions. (R. at 91.)
IV. THE ADMINISTRATIVE DECISION
On March 27, 2012, the ALJ issued his decision. (R. at 13-29.) He found that Plaintiff
met the insured status requirements of the Social Security Act through September 30, 2007. (R.
at 15.) At step one of the sequential evaluation process,1 the ALJ found that Plaintiff had not
1
Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive finding at
any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully
considered, the sequential review considers and answers five questions:
1.
2.
Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
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engaged in substantially gainful activity since September 30, 2007, the alleged onset date. (Id.)
The ALJ found that Plaintiff has the severe impairments of major depressive disorder, mood
disorder, bipolar depression, and generalized anxiety with agoraphobia and panic attacks. (Id.)
He further found that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Id.) At step four of the sequential process, the ALJ evaluated Plaintiff’s
residual functional capacity (“RFC”).2 The ALJ found as follows with respect to Plaintiff’s
RFC:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a full range of work at all exertional levels
but with the following nonexertional restrictions: understand and remember
simple instructions; sustain attention to complete simple repetitive tasks where
production quotas are not critical; tolerate co-workers and supervisors with
limited and superficial interpersonal demands in an object-focused, nonpublic
work setting and adapt to routine changes in a static work setting.
(R. at 18.) In reaching this determination, the ALJ gave “great weight” to the opinion of StateAgency reviewing psychologists, finding that the limitations about which they opined were
consistent with the longitudinal record and were not contradicted by any treating source. (R. at
3.
4.
5.
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual functional
capacity, can the claimant perform other work available in the national economy?
See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
2
A claimant’s “residual functional capacity” is an assessment of the most a claimant can do in a
work setting despite his or her physical or mental limitations. 20 C.F.R. §404.1545(a); see Howard v.
Commissioner of Social Sec., 276 F.3d 235, 239 (6th Cir. 2002).
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19-20.) The ALJ assigned “some weight” to the opinion of Job and Family Services consulting
psychologist Dr. Yee, but concluded that the severe limitations she assigned were inconsistent
with the weight of the medical evidence. He assigned “less weight” to the September 21, 2011
mental residual functional capacity assessment completed by treating physician Dr. Vajen,
finding the opinion that Plaintiff was markedly limited in every category involving social
interaction was conclusory and not supported by the weight of the medical evidence in the record
or his own treatment notes. (R. at 20.) The ALJ further noted that Plaintiff’s medically
determinable mental impairments could reasonably be expected to cause the alleged symptoms.
He concluded, however, that Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of these symptoms are not entirely credible. (R. at 23.)
The ALJ relied upon the VE’s testimony to conclude that Plaintiff retained the RFC to
perform jobs existing in significant number in the regional and national economy, including the
representative jobs of laundry aide, routing clerk, and warehouse checker. He therefore
concluded that Plaintiff was not disabled under the Social Security Act. (Id.)
V. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence
standard, “‘a decision of the Commissioner will not be upheld where the SSA fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007)).
VI. ANALYSIS
In her Statement of Errors, Plaintiff asserts that: 1) the ALJ erred in her analysis of
medical source opinions; 2) the RFC assigned by the ALJ was not supported by substantial
evidence as it pertained to Dr. Yee’s opinions; and 3) the administrative record does not provide
a factual basis for a finding that Plaintiff could perform other work. (ECF No. 14.) The Court
will consider each of these purported errors in turn.
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A.
Weighing of Opinion Evidence
The ALJ must consider all medical opinions that he or she receives in evaluating a
claimant’s case. 20 C.F.R. § 416.927(d). The applicable regulations define medical opinions as
“statements from physicians . . . that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2).
The ALJ generally gives deference to the opinions of a treating source “since these are
likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a
patient’s] medical impairment(s) and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings alone . . . .” 20 C.F.R.
§ 416.927(d)(2); Blakley, 581 F.3d at 408. If the treating physician’s opinion is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling
weight.” 20 C.F.R. § 404.1527(d)(2).
If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ
must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling
weight:
[A]n ALJ must apply certain factors—namely, 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—in
determining what weight to give the opinion.
Id.
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Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of
determination or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20
C.F.R. § 416.927(d)(2). Accordingly, the ALJ’s reasoning “must be 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.” Friend v. Comm’r of Soc. Sec., No. 09-3889,
2010 WL 1725066, at *7 (6th Cir. 2010) (internal quotation omitted). The United States Court
of Appeals for the Sixth Circuit has stressed the importance of the good-reason requirement:
“The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases,” particularly in situations where a claimant knows that
his physician has deemed him disabled and therefore “might be especially
bewildered when told by an administrative bureaucracy that she is not, unless
some reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128,
134 (2d Cir.1999). The requirement also ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.
See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).
Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important
when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v.
Comm’r of Soc. Sec., 312 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).
1.
Dr. Vajen
Plaintiff asserts that the ALJ erred in the weight he assigned to Dr. Vajen’s MRFC dated
September 21, 2011. In the MRFC, Dr. Vajen indicated that Plaintiff was markedly limited in all
areas of social interaction, except for her ability to relate to the general public and be socially
appropriate, in which he opined that Plaintiff was “extremely limited.” (R. at 382-384.) First,
Plaintiff asserts that the ALJ’s discussion of the opinion evidence was procedurally deficient
because he discussed the weight he gave to the state-agency reviewing physicians prior to
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discussing the weight he gave to Dr. Vajen’s assessment. Plaintiff also contends that the ALJ
should have provided more weight to Dr. Vajen’s opinion evidence.
The Court concludes that the ALJ complied with the necessary procedural requirements
in determining how much weight to assign Dr. Vajen’s opinion. First, the Social Security
Regulations do not require an ALJ to discuss opinion evidence in a certain order. Instead,
“[d]iscretion is ‘vested in the ALJ to weigh all the evidence.’” Collins v. Comm’r, 375 F. App’x
663, 668 (6th Cir. 2009) (quoting Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224,
1227 (6th Cir. 1988)). Second, substantial evidence supports the ALJ’s evaluation of the weight
assigned to Dr. Vajen’s opinion. The ALJ provided good reasons for discounting Dr. Vajen’s
opinion as conclusory and inconsistent with the objective medical evidence, as well as his own
treatment notes. See Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1001 (6th Cir. 2011)
(concluding that the ALJ met the “good reasons” requirement for a variety of reasons, including
by noting that the treating physician’s findings were “unsupported by objective medical findings
and inconsistent with the record as a whole.”); Simpson v. Comm’r of Soc. Sec., 344 F. App’x
181, 193 (6th Cir. 2009) (concluding that the ALJ met the good reason requirement by noting
that the opinion was inconsistent with the physician’s treatment notes and with the record
evidence). Further, the ALJ indicated that Dr. Vajen’s conclusions were highly dependent upon
Plaintiff’s subjective complaints, but Plaintiff was not wholly credible or fully reliable. (R. at
21, 23.) Finally, the ALJ correctly noted that Dr. Vajen’s statement that Plaintiff was a strong
candidate for disability was not entitled to controlling weight. The degree to which an individual
is capable of performing work is an issue reserved to the Commissioner. See 20 C.F.R. §
404.1527(d)(1) (“[The Commissioner] is responsible for making the determination or decision
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about whether [the claimant] meets the statutory definition of disability. . . . A statement by a
medical source that you are ‘disabled’ or ‘unable to work’ does not mean that [the ALJ] will
determine that you are disabled.”); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007) (holding
that the ALJ properly rejected a treating physician’s opinion that the claimant was disabled
because such a determination was reserved to the Commissioner.).
Substantial evidence supports the ALJ’s evaluation of and weight assigned to Dr. Vajen’s
extreme opinion. In Dr. Vajen’s treatment notes, he describes Plaintiff as “doing very well.” (R.
at 229.) On November 5, 2009, he describes Plaintiff as having “her usual, bubbly personality.”
(R. at 227.) Dr. Vajen also indicated that Plaintiff had passed her GED except for the math
portion, and would “soon be gainfully employed.” (R. at 231.) Similarly, the State-Agency
reviewers concluded that Plaintiff did well on her medication, was forward-thinking,
demonstrated the ability to set realistic goals, and was able to communicate her needs. (R. at 6771.) Plaintiff’s own self-reports indicate that she does housework, spends time with her children,
and sometimes cooks dinner with her boyfriend. (R. at 46-48.) Accordingly, the Court
concludes that the ALJ did not err in failing to afford greater weight to the very restrictive
September 12, 2011 opinion of Dr. Vajen.
2.
Dr. Yee
Plaintiff asserts that the ALJ erred by discarding the limitations about which Dr. Yee
opined in her OJDFS assessment form. Specifically, Plaintiff contends that the ALJ should have
afforded more weight to Dr. Yee’s opinion that she was moderately limited in fourteen of the
twenty assessment areas and her definition of “moderate” as 25-35% off task. (R. at 366-67.)
Substantial evidence also supports the ALJ’s treatment of and weight afforded to Dr.
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Yee’s opinion. Dr. Yee’s opinion is not entitled to controlling weight because she does not
qualify as Plaintiff’s treating physician. As set forth above, to qualify as a treating source, the
physician must have an “ongoing treatment relationship” with the claimant. 20 C.F.R.
§ 404.1502. This is because “the rationale of the treating physician doctrine simply does not
apply” where a physician issues an opinion after a single examination. Barker v. Shalala, 40
F.3d 789, 794 (6th Cir. 1994).
Here, as the ALJ pointed out, Dr. Yee saw Plaintiff only once.
(R. at 20.) The ALJ was therefore required only to “consider factors including the length and
nature of the treatment relationship, the evidence that the physician offered in support of her
opinion, how consistent the opinion is with the record as a whole, and whether the physician was
practicing in her specialty.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010)
(citing 20 C.F.R. § 404.1527(d)).
The record demonstrates that the ALJ considered the above factors with respect to Dr.
Yee’s opinion as a whole and with respect to her definition of “moderate.” First, the ALJ
indicated that Plaintiff saw Dr. Yee only once, that her opinion was “highly dependent upon the
claimant’s report of symptoms and limitations during the evaluation,” and that Plaintiff was not
wholly credible. (R. at 20.) The ALJ also properly supported his decision to discount Dr. Yee’s
findings by indicating that the severe limitations about which she opined were inconsistent with
the weight of the medical evidence.
An ALJ is entitled to discount a medical opinion based on a claimant’s subjective
complaints that are not supported by objective medical evidence. See Ferguson v. Comm’r of
Soc. Sec., 628 F.3d 269, 273-74 (6th Cir. 2010) (concluding that the ALJ did not err in rejecting
a medical opinion based on the claimant’s subjective complaints, which were not supported by
15
objective medical evidence); Braun v. Comm’r of Soc. Sec., No. 1:12-cv-12, 2013 WL 443542,
at *10 (S.D. Ohio Feb. 5, 2013) (“The ALJ is not required to accept medical opinions from
mental health providers which are based on plaintiff’s subjective complaints that are not
supported by clinical observations.”); Lunsford v. Astrue, No. 2:11-cv-308, 2012 WL 1309265,
at *5 (S.D. Ohio April 15, 2012.) (concluding that “if an ALJ finds . . . subjective reports to be
unworthy of complete belief, any medical opinion based on such complaints may also be
discounted.”); Holmes v. Astrue, No. 3:08-cv-2801, 2010 WL 1258080, at *8 (N.D. Ohio Mar.
26, 2010)(concluding that, where the ALJ finds a claimant to not be credible, the ALJ is entitled
to “reasonably attribute less weight” to a medical opinion based in large part on the claimant’s
subjective report of symptoms). Here, for these reasons, the ALJ properly supported his decision
to discount Dr. Yee’s opinion and his conclusion is supported by substantial evidence.
Plaintiff’s assertion that the ALJ was “playing doctor” by discounting Dr. Yee’s
definition of the term “moderate” is not well taken. (Statement of Errors 10-11, ECF No. 14.)
“‘ALJs must not succumb to the temptation to play doctor and make their own independent
medical findings.’” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009)
(quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–
CV–00828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not
interpret raw medical data in functional terms”) (internal quotations omitted). Here, however,
the ALJ was not interpreting raw medical data and making medical findings. Instead, the ALJ
concluded that the nonexertional limitations Dr. Yee imposed, including her finding that Plaintiff
would be off-task 25 to 35% of the time, were inconsistent with the record as a whole. As
addressed above, the ALJ was not required to afford significant weight to Dr. Yee’s opinion as a
16
non-treating physician. Substantial evidence therefore supports the ALJ’s decision to afford less
weight to Dr. Yee’s opinion.
B.
Mental Residual Functional Capacity
Plaintiff asserts that the ALJ’s hypothetical question to the VE was not reflected correctly
in Plaintiff’s RFC. Specifically, Plaintiff points out that according to the hearing transcript the
ALJ posed the following hypothetical to the VE: “There are no exertional limitations but due to
mental impairments the hypothetical individual can’t understand and remember simple
instructions . . . .” (Statement of Errors 17, ECF No. 14) (emphasis added.) The VE responded
that a hypothetical individual with those limitations would be capable of performing unskilled
positions such as a laundry aid, routing clerk, or warehouse checker. (R. at 57.) In the RFC
provided by the ALJ, however, he describes the limitation as “understand and remember simple
instructions . . . .” (R. at 18)(emphasis added.) Plaintiff maintains that, because of this
discrepancy, the ALJ’s RFC assessment is not supported by substantial evidence.
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010).
An ALJ is required to explain how the evidence supports the limitations that he or she set
forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
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findings) and nonmedical evidence (e.g., daily activities, observations).
In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted).
“Substantial evidence may be produced through reliance on the testimony of a vocational
expert in response to a ‘hypothetical’ question, but only ‘if the question accurately portrays
[plaintiff’s] individual physical and mental impairments.’” Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 779 (6th Cir. 1987) (quoting Podeworny v. Harris, 745 F.2d 210, 218 (3d
Cir. 1984)). Where the hypothetical posited to the VE is more favorable to Plaintiff than the
limitations included in the RFC, remand is inappropriate where the RFC is supported by
substantial evidence. Pasco v. Comm’r of Soc. Sec., 127 F. App’x 828, 845 (6th Cir. 2005)
(affirming the Commissioner’s decision where the hypothetical posed to the VE was more
favorable to plaintiff than the one included in the RFC); Beverly v. Astrue, No. 1:11-cv-41, 2012
WL 395081, at *4 (S.D. Ohio Feb. 7, 2012) (concluding that, where the hypothetical question to
the VE was more favorable to plaintiff, the RFC should be affirmed because it was substantially
supported by the record and “clear that there are jobs that exist in significant numbers that
Plaintiff can perform based upon the testimony of the vocational expert.”).
Substantial evidence supports the ALJ’s RFC assessment. First, the hypothetical the ALJ
posed to the VE was more favorable to Plaintiff than the restrictions he ultimately included in her
RFC. Specifically, the ALJ asked the VE to consider someone who could not understand simple
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instructions; the ALJ’s assessment of Plaintiff’s RFC indicated she could understand simple
instructions. Despite this variance, the VE testified that the hypothetical individual would be
capable of performing work as a laundry aide, a routing clerk, and a warehouse checker. Thus,
based on the VE’s testimony, it is clear that jobs exist in significant numbers that Plaintiff can
perform. Further, the ALJ pointed out that State-Agency reviewers, whose opinions he afforded
great weight, opined that Plaintiff was “not significantly limited” in her ability to understand and
remember simple instructions.” (R. at 19-20, 67, 77, 91, and 105.) The ALJ further supported
his RFC by noting that Plaintiff reported she was in job training. (R. at 23.) Additionally, the
ALJ noted that Dr. Yee found that Plaintiff “possessed normal thought content and processes”
which was consistent with the record as a whole. (R. at 23.) Finally, the ALJ opined that the
record is “replete with documentation that her memory, mentation, attention, orientation and
cognition were normal and intact.” (Id.) Substantial evidence supports the ALJ’s conclusions
with respect to Plaintiff’s RFC.
VII. DISPOSITION
From a review of the record as a whole, the Court concludes that substantial evidence
supports the ALJ’s decision denying benefits. Accordingly, Plaintiff’s Statement of Errors is
OVERRULED, and the Commissioner of Social Security’s decision is AFFIRMED.
IT IS SO ORDERED.
Date: August 28, 2014
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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