Robinson v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Michelle Y Robinson. It is RECOMMENDED that the decision of the Commissioner be reversed and that the action be remanded pursuant to Sentence 4 of 42 U.S.C. § 405(g) for further consideration of the opinion of plaintiff's treating neurosurgeon. Objections to R&R due by 11/17/2014. Signed by Magistrate Judge Norah McCann King on 10/31/2014. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHELLE Y. ROBINSON,
Plaintiff,
vs.

Civil Action 2:13-CV-1055
Judge Sargus
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. 14, and the
Commissioner’s Memorandum in Opposition, Doc. No. 22.

Plaintiff has not

filed a reply.
Plaintiff Michelle Y. Robinson filed her applications for benefits
on November 20, 2009 and December 28, 2009, respectively, alleging that
she has been disabled since April 15, 2006.

The applications were denied

initially and upon reconsideration, and plaintiff requested a de novo
hearing before an administrative law judge.
An administrative hearing was held on March 1, 2012.

Plaintiff,

represented by counsel, appeared and testified, as did a vocational expert.
In a decision dated May 22, 2012, the administrative law judge concluded
that plaintiff was not disabled from April 15, 2006, through the date of
the administrative decision. PageID 60-76.

That decision became the final

decision of the Commissioner of Social Security when the Appeals Council
declined review on September 11, 2013.

PageID 49-52.

Plaintiff was 36 years of age on her alleged disability onset date.
See PageID 75, 231.

She has a high school education in special education,

PageID 90, is able to communicate in English, and has past relevant work
as a fast food worker, kitchen cook, and laborer.

PageID 74, 238, 239.

Plaintiff was last insured for disability insurance benefits on March 31,
2008.

PageID 65.

She has not engaged in substantial gainful activity

since April 15, 2006, her alleged date of onset of disability.
II.

Id.

Evidence of Record
A.

Physical Impairments

Michelle Graham, M.D., a family practitioner, first saw plaintiff in
August 2004. Dr. Graham noted a history of degenerative disc disease. PageID
391. In October 2004, plaintiff complained of worsening lumbar pain. PageID
389.

Lumbar epidural steroid injections were administered. PageID 385,

388. A September 2005 MRI, taken after a fall, showed a left-sided L5-S1
disk herniation resulting in some mild effacement of the left lateral
recess, disc degeneration at multiple levels, and a small posterior central
disc protrusion at the L4-L5 level.

PageID 398-99. Dr. Graham referred

plaintiff to Stephen T. Woods, M.D., of the Spine Clinic at the Ohio State
University (OSU) Medical Center, PageID 385, who in turn recommended a
consultation with a neurosurgeon.

PageID 367.

E. Antonio Chiocca, M.D., Ph.D., a neurosurgeon, saw plaintiff in
October 2005.

PageID 364-65.

Plaintiff complained of low back pain

radiating through the hip and down the right lateral aspect of the leg to
the foot. PageID 364. Dr. Chiocca noted that plaintiff walked with a limp

2

and could heel walk and toe walk equally. Reflexes were 2+/4+. She had a
positive straight leg raise on the right side at about 20 degrees but
negative on the left. There were complaints of bilateral hip pain on
abduction and extension. Dr. Chiocca diagnosed right L5 radiculopathy
caused by the foraminal recess stenosis at L4-5. He ordered a CT scan and
an MRI. PageID 365.
The November 2005 CT scan showed “some small disc bulges and central
disc protrusion at L4-5 and L5-S1 with slight indentation of the dural sac,
but no real significant stenosis.” PageID 377.

MRIs of both hips showed

a gluteus medius tendon with some swelling and a possible tear.

PageID

378-79.
On January 3, 2006, Dr. Chiocca performed hemilaminectomies and
medial facetomies at L4-5 and L5-S1.

PageID 375-76, 578.

When seen for follow-up by Dr. Woods in May 2006, plaintiff reported
some leg discomfort. On examination, Dr. Woods found full range of motion
and full strength in the lower limbs.

PageID 571-72.

Plaintiff saw Gary Bos, M.D., at the OSU Outpatient Clinic in June
2006, for complaints of right hip pain and neuritic symptoms in the ight
foot and ankle. Dr. Bos noted good range of motion of the hip.

PageID 568.

Following a follow up visit on September 18 2006, Dr. Chiocca reported
to Dr. Graham
that [plaintiff] continues to have back soreness, as well as
bilateral hip pain. This keeps her from doing some standing, or
walking for very long periods of time without getting pain. She
also has this sensation of pain in her right calf and foot
whenever the weather gets cold and she gets these shocks in this
area. Dr. Bos felt that this may be due to peroneal nerve
entrapment. She had an EMG study and I looked at the study today
and they did not really find any evidence for that. To me, the
symptoms appeared to be more consistent with some type of
circulatory trouble, rather than any superficial peroneal nerve
dermatoma distribution. However, it is fairly minor compared to
the fact that she has this bilateral hip pain and back pain. I

3

told her that it seems to me that she is heading toward a
permanent disability status because of her back and her hips.
She feels that she cannot go back to work to do the occupation
that she usually knows how to do. Certainly I would support that
at this point.
PageID 360.

A note written by Dr. Chiocca on a prescription pad and dated

that same day reads, “[Plaintiff] is permanently unable to work.”

PageID

664.
Plaintiff began treating with primary care physician Bethany Gaskill,
M.D., in March 2009. PageID 595. Dr. Gaskill noted complaints of chronic
back, hip, knee and ankle pain described by plaintiff as a shooting,
stabbing, burning sensation that radiates down her leg almost constantly.
Id.

X-rays of the hip, knee, and ankle were normal. Muscle strength was

4/5 in the right lower extremity but otherwise full in all areas. PageID
599, 601-02.
Robert Woskobnick, D.O., consultatively examined plaintiff on behalf
of the state agency on April 29, 2010. PageID 423-29.

Dr. Woskobnick noted

a normal gait, full muscle strength, no muscle atrophy, and full range of
motion in all regions except in plaintiff’s lumbar spine, which manifested
some limitations in flexion, extension, and lateral flexion. Plaintiff
could perform deep knee bends.

PageID 424-25.

Dr. Woskobnick assessed

chronic back pain with equivocal positive straight leg raise, greater on
the right than on the left, in both the supine and seated positions.
According to Dr. Woskobnich, plaintiff could stand up to 4 hours in a work
environment so long as she could rest 15 minutes each hour. She could lift
up to 20 pounds occasionally. PageID 425.
State agency physician Dimitri Teague, M.D., reviewed the file in June
2010,

PageID

541-48,

and

opined

that

plaintiff

could

occasionally

lift/carry ten pounds, stand or walk at least two hours in an 8-hour workday,

4

and sit up to 6 hours in an 8-hour workday.

PageID 542.

Plaintiff could

frequently climb ramps/stairs but could never climb ladders, rope or
scaffolds and could only occasionally stoop or crouch. She should have no
exposure to hazards. PageID 543, 545. Dr. Teague found plaintiff’s
subjective complaints to be partially credible. PageID 546.
B.

Mental Impairments

The record reflects an April 2002 psychological assessment by David
Gorrell, Ph.D., PCC, of Clark County Mental Health Services. PageID 335-39.
Plaintiff reported that she had been in counseling off and on since the
6th grade. PageID 337. She also reported that she sleeps a lot, “doesn’t
want to get up most of the time,” and lacks energy. Id. She was taking Effexor
for depression. Dr. Gorrell diagnosed a mood disorder, NOS, and recommended
weekly counseling.

PageID 291. Plaintiff continued with counseling

through June 2002. PageID 331-34, 340-42.
Maymoud Shehata, M.D., of the New Horizons Youth and Family Center,
assessed plaintiff in March 2005. Plaintiff’s mood was euthymic and her
affect was reactive. She was cooperative.

Dr. Shehata diagnosed major

depression and prescribed Prozac and Wellbutrin. PageID 352-53. Plaintiff
did not follow up for treatment. PageID 351.
Mark Miller, Ph.D., examined plaintiff for disability purposes on two
occasions. When he first examined plaintiff in February 2007, plaintiff
reported racing thoughts, occasional anxiety attacks, difficulty with
short-term recall, depression, passive suicidal ideation and mistrust of
others.

PageID 411-12.

Dr. Miller opined that the plaintiff was

functioning in the borderline range of intelligence, with a suggested
learning disability.

PageID 413. He diagnosed generalized anxiety

5

disorder, dysthymic disorder, borderline intellectual functioning, and a
pain disorder.

PageID 414. According to Dr. Miller, plaintiff was not

impaired in her ability to understand, remember, and carry out one and two
step job instructions, was moderately impaired in her ability to interact
with co-workers, supervisors, and the public, because of her anxiety and
depression, was moderately impaired in her ability to maintain attention,
concentration and persistence in task completion, and was markedly impaired
in her ability to deal with stress and pressure in a work setting, because
of her pain disorder, anxiety and depression.

PageID 413-14.

In February 2010, plaintiff was evaluated by William Vasilakis,
Psy.D., on behalf of the Ohio Department of Job and Family Services. PageID
478-81.

Plaintiff reported suicidal thoughts, a history of abuse, high

anxiety, panic attacks, and nightmares. PageID 479.

According to Dr.

Vasilakis, plaintiff was markedly impaired in her ability to understand
and

remember

detailed

instructions,

to

maintain

attention

and

concentration for extended periods, to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace, and to accept instructions and respond
appropriately to criticism from supervisors.
characterized plaintiff as unemployable.

PageID 478.

Dr. Vasilakis

Id.

Dr. Miller examined plaintiff for a second time in March 2010. He found
plaintiff

“somewhat

depressed,”

with

normal

thought

processes

and

conversation, normal concentration, good abstract thinking, and moderate
organizational

skills.

PageID

501-02.

According

to

Dr.

Miller,

plaintiff was not impaired in her ability to understand, remember, and carry
out one and two step job instructions or to maintain attention and
concentration, and was moderately impaired in her ability to interact with

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co-workers, supervisors, and the public and to deal with stress and pressure
in a work setting and to persist in task completion. PageID 502. Dr. Miller
assigned a Global Assessment of Functioning score of 60, which is indicative
of moderate symptoms.

PageID 503.

Plaintiff began treatment with Chris Shaheen, PCC, in March 2010.
PageID 535.

In June 2010, Mr. Shaheen completed a mental status

questionnaire in which he listed plaintiff’s diagnosis as post traumatic
stress disorder (“PTSD”), with rule out bipolar disorder.

PageID 537. Mr.

Shaheen described plaintiff’s daily activities as including cooking,
performing household chores, shopping, and using a computer. PageID 538.
Mr. Shaheen found that plaintiff becomes overwhelmed easily, is irritable,
has racing thoughts, poor concentration, a low stress tolerance and
inability to concentrate and is often overwhelmed by memories of past
trauma.

Id.

According to Mr. Shaheen, plaintiff is unable to sustain

concentration sufficient to complete tasks. She does not adapt easily to
new situations. PageID 537.
State agency psychologist Bruce Goldsmith, Ph.D., reviewed the file
in April 2010 and found that the record documents affective, anxiety, and
somatoform disorders.

PageID 523, 525, 526.

According to Dr. Goldsmith,

plaintiff is not restricted in her activities of daily living, and has
moderate difficulties in maintaining social functioning, concentration,
persistence and pace. PageID 530. Plaintiff retains the ability to
understand, remember, and follow simple instructions. Her ability to
sustain persistence and pace, and to interact with others is moderately
impaired. She would perform best in a work setting requiring routine tasks,
presenting a stable environment and infrequent changes, involving limited

7

public interactions and no over the shoulder supervision.

Id. State agency

psychologist Alice Chambly, Psy.D., affirmed Dr. Goldsmith’s opinion.
PageID 566.
C.

Administrative Hearing

Plaintiff testified at the administrative hearing that she lives in
an apartment with her 20 year old son. PageID 91. She is divorced but is
“seeing someone.”

Id. She does not leave her residence without her son

and relies on him to help her climb stairs. PageID 92. She drives about
once a week; she drove herself to the hearing. PageID 92-93.
Plaintiff testified that pain in her back and legs keeps her from work.
PageID 100.

She described the pain as extending from the middle to the

base of her spine down her legs, often causing numbness in her right leg.
Id. She underwent breast reduction surgery in an effort to reduce her back
pain.

PageID 112. Neither that surgery nor back surgery provided lasting

relief.

Id. She takes Naproxen for pain.

Id.

Plaintiff also testified that she cannot work because “I don’t like
being around people.” Id.

She “can’t keep [her] mouth shut.” PageID 101.

That problem had worsened in the three years prior to the hearing.

Id.

Depression and post-traumatic stress disorder also affect her ability to
work; she cries a lot and cannot maintain focus: “I start one thing, and
then I move on to something else, and then I totally forget about . . .
and I can’t seem to complete my tasks.” Id. She feels worthless. PageID
117. She experiences panic attacks three times per week, each lasting three
to five minutes. PageID 118.
Plaintiff can complete limited household chores on her “good days,”
but her bad days outweigh her good days. PageID 103. She can dress herself,

8

but her sons tie her shoes.

PageID 105. She spends most of the day sitting;

she can sit for 30 to 45 minutes before having to change positions.
106.

PageID

She cannot walk more than one block; she can stand for approximately

15 minutes before she must change positions.
occasionally lift a gallon of milk.

PageID 107. She can

PageID 107-08.

She goes grocery

shopping once per week, usually at night. PageID 109. Her son performs most
of the household chores.

Id.

Asked to assume a claimant with plaintiff’s vocational profile and
the residual functional capacity eventually found by the administrative
law judge, the vocational expert testified that such a claimant could not
perform any of plaintiff’s past relevant work, PageID 124-25, but could
perform such jobs as addresser and stuffer.

PageID 125.

III. Administrative Decision
The

administrative

law

judge

found

that

plaintiff’s

severe

impairments consist of pain disorder, generalized anxiety disorder,
dysthymic disorder, borderline intellectual functioning, posttraumatic
stress disorder, right hip osteoarthritis, and status post L4-5 and L5-S1
hemilaminectomies and medial facetectomies. PageID 66. The administrative
law judge also found that plaintiff’s impairments neither meet nor equal
a listed impairment. PageID 66-69. Plaintiff’s impairments leave her with
the residual functional capacity (“RFC”)
to perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except the claimant can occasionally climb ramps and
stairs, but never climb ladders, ropes, or scaffolds. She can
occasionally stoop, kneel, crouch, and crawl. Additionally, she
must avoid exposure to hazards such as working at unprotected
heights and working around dangerous moving machinery. The
claimant can perform simple, routine, no more than Specific
Vocational Preparation (SVP) 2-type tasks in an environment with
no more than occasional change, without fast-paced production
or strict time quotas, and with only occasional interaction with
others.

9

PageID 69.
In determining plaintiff’s RFC, the administrative law judge stated
that he considered opinion evidence in accordance with the requirements
of 20 CFR §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
PageID 69. Specifically, the administrative law judge afforded “little
weight” to Mr. Shaheen’s assessment of plaintiff’s mental impairments,
characterizing it as inconsistent with plaintiff’s activities of daily
living. PageID 73. The administrative law judge assigned “significant
weight” to Dr. Miller’s opinions, finding them to be consistent with
plaintiff’s mental health longitudinal medical history and supported by
Dr. Miller’s examination findings. Id. The administrative law judge
assigned “some weight” to the opinion of the state agency reviewing
psychologist, Dr. Goldsmith, finding that his opinion did not account
adequately for plaintiff’s difficulties with handling stress. PageID
73-74.
In considering the plaintiff’s physical RFC, the administrative law
judge determined that Dr. Chiocca’s opinion was inconsistent with the
longitudinal medical evidence and was not supported by the evidence in
September 2006. PageID 74. However, the administrative law judge appeared
to consider only Dr. Chiocca’s statement of disability written on a
prescription pad in September 2006, questioning its validity because it
was not made part of plaintiff’s disability file until the March 2012
administrative hearing. Id. The administrative law judge assigned “some
weight” to the opinion of the reviewing state agency physician Dr. Teague.
PageID 73.

10

Although the RFC found by the administrative law judge precluded the
performance of plaintiff’s past relevant work, the administrative law judge
relied on the testimony of the vocational expert to find that plaintiff
is nevertheless able to perform a significant number of jobs in the regional
economy, including 2,625 jobs at the sedentary level of exertion such as
an addresser and stuffer.

PageID 75. Accordingly, the administrative law

judge concluded that plaintiff was not disabled within the meaning of the
Social Security Act from April 15, 2006, through the date of the
administrative law judge’s decision.
IV.

PageID 76.

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
be affirmed even if this Court would decide the matter differently, Tyra

11

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 her Statement of Specific Errors, plaintiff contends that the
administrative law judge failed to properly weigh the opinions of her
treating physicians.

Statement of Specific Errors, PageID 675.

This

Court agrees that the administrative law judge failed to properly evaluate
Dr. Chiocca’s September 18, 2006 medical opinion.1
The opinions of treating physicians must be accorded controlling
weight if they are “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and not “inconsistent with the other
substantial evidence in [the] case record.”
416. 927(d)(2).

20 C.F.R. §§404.1527(d)(2);

If the administrative law judge finds 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. ...”
v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

Wilson

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.

See 20 C.F.R. §§404.1527(d)(2),(4);

1

Plaintiff also argues that, in determining plaintiff’s RFC, the administrative
law judge failed to properly evaluate the opinions of plaintiff’s treating mental
health professionals and her complaints of pain. Because the Court concludes that
remand of the action is appropriate, the Court does not consider these separate
issues.

12

416.927(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). However, a

formulaic recitation of factors is not required.

See Friend v. Comm’r of

Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s opinion
permits the claimant and a reviewing court a clear understanding of the
reasons for the weight given a treating physician’s opinion, strict
compliance with the rule may sometimes be excused.”).
On September 18, 2006, Dr. Chiocca – plaintiff’s treating
neurosurgeon – rendered the following medical opinion:
[plaintiff] continues to have back soreness, as well as
bilateral hip pain. This keeps her from doing some standing, or
walking for very long periods of time without getting pain. She
also has this sensation of pain in her right calf and foot
whenever the weather gets cold and she gets these shocks in this
area. Dr. Bos felt that this may be due to peroneal nerve
entrapment. She had an EMG study and I looked at the study today
and they did not really find any evidence for that. To me, the
symptoms appeared to be more consistent with some type of
circulatory trouble, rather than any superficial peroneal nerve
dermatoma distribution. However, it is fairly minor compared to
the fact that she has this bilateral hip pain and back pain. I
told her that it seems to me that she is heading toward a
permanent disability status because of her back and her hips.
She feels that she cannot go back to work to do the occupation
that she usually knows how to do. Certainly I would support that
at this point.
PageID 360. The administrative law judge made no mention whatsoever of this
report and opinion.

Rather, the administrative decision referred only to

Dr. Chiocca’s notation that plaintiff “is permanently unable to work,”
PageID 664, purportedly written on that same date but presented for the
first time at the administrative hearing:

13

At the hearing, the claimant provided a prescription form that
September 18, 2006 [sic] reportedly from E. Antonio Chiocca,
M.D., Ph.D., that state [sic] “Ms. Robinson is permanently
unable to work.” (Exhibit 34F). That this “prescription” was not
provided until the day of the hearing despite having been
reportedly written in September 2006 calls into question the
validity of this statement. Additionally, statements that a
claimant is “disabled”, “unable to work”, can or cannot perform
a past job, meets a Listing or the like are not medical opinions
but are administrative findings dispositive of a case, requiring
familiarity with the Regulations and legal standards set forth
therein. Such administrative findings are reserved to the
Commissioner, who cannot abdicate his statutory responsibility
to determine the ultimate issue of disability (20 CFR 404.1527
& 416.927; SSR 96-5p). The undersigned finds this statement to
be inconsistent with the longitudinal medical evidence and not
supported by any evidence from September 2006. Therefore, the
undersigned gives this opinion no weight.
PageID 74. Because the administrative law judge failed to either mention
or consider Dr. Chiocca’s lengthy medical report dated September 18, 2006,
the Court concludes that the matter must be remanded for proper
consideration of this opinion of plaintiff’s treating physician.
It is therefore RECOMMENDED that the decision of the Commissioner be
reversed and that the action be remanded to the Commissioner of Social
Security pursuant to Sentence 4 of 42 U.S.C. § 405(g) for further
consideration of the opinion of plaintiff’s treating neurosurgeon.
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

14

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).

Date: October 31, 2014

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

15