Moore v. Commissioner of Social Security
Filing
18
REPORT AND RECOMMENDATIONS re 3 Complaint filed by Gidget E. Moore. It is RECOMMENDED that the decision of the Commissioner be reversed and that the matter be remanded to the Commissioner for further proceedings. Objections to R&R due by 6/22/2015. Signed by Magistrate Judge Norah McCann King on 6/5/2015. (NMK)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GIDGET E. MOORE,
Plaintiff,
vs.
Civil Action 2:14-CV-455
Judge Marbley
Magistrate Judge King
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.
Background
This is an action instituted under the provisions of 42 U.S.C.
§§ 405(g), 1383(c), for review of a final decision of the Commissioner of
Social Security denying plaintiff’s applications for disability insurance
benefits and supplemental security income. This matter is now before the
Court on plaintiff’s Statement of Specific Errors, Doc. No. 11, and the
Commissioner’s Memorandum in Opposition, Doc. No. 16.
Plaintiff Gidget E. Moore protectively filed her applications for
benefits on December 2, 2010, alleging that she has been disabled since
June
16,
2010.
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 November 27, 2012. Plaintiff,
who was represented by counsel, appeared and testified, as did William
Braunig, who testified as a vocational expert.
In a decision dated January
24, 2013, the administrative law judge concluded that plaintiff was not
disabled from June 16, 2010, through the date of the administrative
decision. PageID 55-74.
That decision became the final decision of the
Commissioner of Social Security when the Appeals Council declined review
on March 28, 2014.
PageID 40-44.
Plaintiff was 42 years of age on her alleged disability onset date.
See PageID 72, 292.
She has a GED, is able to communicate in English, and
has past relevant work as a fast food worker and janitor.
285.
PageID 72-73,
Plaintiff was last insured for disability insurance benefits on June
30, 2013.
PageID 60.
She has not engaged in substantial gainful activity
since June 16, 2010, her alleged date of onset of disability.
II.
Id.
Evidence of Record1
Plaintiff sought mental health treatment from Consolidated Care in
December 2009 after her release from prison.
PageID 1031-42.
On initial
mental status examination, Robert Crook, M.A., L.S.W., found a full affect
but that plaintiff was agitated, depressed and anxious.
PageID 1042.
Mr.
Crook diagnosed major depressive disorder, rule out bi-polar disorder, and
post-traumatic stress disorder (“PTSD”). PageID 1040.
Plaintiff was evaluated by Angela Wallenbrock, M.D., a psychiatrist
with Consolidated Care, on December 18, 2009.
PageID 1025-28.
Plaintiff
reported that she becomes anxious around groups of people, especially if
they’re “rowdy.”
She also referred to anger issues. Dr. Wallenbrock
diagnosed dysthymia and PTSD.
PageID 1027.
Plaintiff underwent counseling with Mr. Crook at Consolidated Care
twice per month through at least November 2012. PageID 990-1030, 1061-88,
1118-49, 1276-1324. Mr. Crook’s treatment notes indicate that plaintiff
1
Although the record contains a history of treatment for physical and mental
conditons, plaintiff’s arguments on appeal relate only to her psychological
condition. See Doc. No. 11, at PageID 1396-1404. Accordingly, the Court has limited
its discussion of the record to the evidence related to plaintiff’s claimed mental
impairments.
2
experiences depression, stress, and anxiety, and has difficulty tolerating
others.
Plaintiff reported being frustrated, angry, depressed, and
anxious, especially when she was off her medication or shortly after a
traumatic life event. PageID 1008, 1012, 1066, 1069, 1072, 1122, 1127, 1280,
1290, 1295, 1300.
Mr. Crook found that, although plaintiff exhibited
depression or anger, she had logical and clear thought processes, was calm,
and had normal behavior and functioning. PageID 994, 996, 997, 1000, 1003,
1006, 1011, 1014, 1016, 1068, 1076, 1120-21, 1132, 1136, 1137, 1140,
1276-79, 1281, 1284, 1285, 1289, 1292, 1298, 1304. On May 11, 2010, Mr.
Crook reported that plaintiff’s “poor stress tolerance, mood swings, anger
outbursts” might prevent work activities for a usual work day or work week.
PageID 961.
In March 2010, plaintiff underwent a vocational assessment through
the Ohio Bureau of Vocational Rehabilitation (BVR). PageID 1043-59.
Plaintiff was placed in a restaurant job, from which she was fired after
one month for excessive absenteeism, was rehired, and was then fired once
again. PageID
On
May
1053-57.
14,
2010,
Dr.
Wallenbrock
completed
a
mental
status
questionnaire. PageID 958-60. Dr. Wallenbrock diagnosed dysthymia and PTSD
and reported that plaintiff manifested articulate speech, no loose
associations, appropriate mood and affect, average intelligence, and good
memory. Dr. Wallenbrock noted plaintiff’s complaints of anxiety attacks,
but also noted that plaintiff had been recently assaulted by a woman under
the influence of drugs.
According to Dr. Wallenbrock, plaintiff “may
become moody” from work pressure, but that she had a good ability to
remember, understand, and follow directions; maintain attention; and
3
sustain concentration, persist at tasks, and complete tasks in a timely
fashion. PageID 959.
Vicki Warren, Ph.D., reviewed the record for the state agency in July
2010.
PageID 971-88.
According to Dr. Warren, plaintiff was mildly
restricted in her activities of daily living, had moderate difficulty in
maintaining
social
functioning
and
persistence and pace. PageID 985.
in
maintaining
concentration,
Dr. Warren opined that plaintiff
“retains the ability to do complex routine work in a predictable environment
where expectations are clear and consistent. Contact [with] others is not
restricted. No production or quota requirements.” PageID
973.
On March 2, 2011, Dr. Wallenbrock reaffirmed plaintiff's diagnoses
of dysthymia and PTSD and found that plaintiff’s speech was clear and
fluent, that she was fully oriented and had no thinking disorders, that
she was of average intelligence, and that her memory was intact. Plaintiff
was tearful at times and her mind raced, but she had adequate insight. Dr.
Wallenbrock noted that loud noises trigger anxiety and plaintiff becomes
anxious
in
crowds;
she
“snaps
for
no
reason.”
According
to
Dr.
Wallenbrock, plaintiff may become anxious in a work setting but that her
ability
to
remember,
understand,
and
follow
directions,
maintain
attention, and sustain concentration, persist at tasks, and complete tasks
in a timely fashion were good. PageID 1111-13.
State agency psychologist Caroline Lewin, Ph.D., reviewed the file
in April 2011 and found that the record documented an affective disorder
and anxiety disorder.
moderate
restrictions
PageID 117.
in
her
According to Dr. Lewin, plaintiff had
activities
of
daily
living
and
mild
difficulties in maintaining social functioning and in concentration,
persistence and pace. Id. According to Dr. Lewin, plaintiff could
4
perform
simple to moderately complex tasks where strict production quotas are not
required.
PageID 119-20.
Plaintiff began treatment with another psychiatrist at Consolidated
Care, Naomi Bloom, M.D., on March 25, 2011. PageID 1115, 1148-49. On
September 23, 2011, Dr. Bloom reported that plaintiff experienced a
depressed mood intermittently with crying spells, and consequently avoided
people. Plaintiff was easily overstimulated, but could focus well on one
thing at a time.
average.
Plaintiff’s stress tolerance was somewhat lower than
PageID 1115-17.
In November 2011, George Schulz, Ph.D., consultatively examined
plaintiff.
PageID 1151-59.
Plaintiff reported diagnoses of PTSD and
depression and advised that her case manager had recommended that she apply
for Social Security disability benefits.
PageID 1152.
She stated that,
on a typical day, she reads and watches television; her hobbies include
drawing and crocheting. She cooks, cleans her apartment, and does laundry
on a regular basis, goes grocery shopping, attends appointments, uses a
computer, and gets along well with neighbors, store clerks, and public
officials.
PageID 1154-55.
On mental status examination, plaintiff was
cooperative, her speech was clear and well organized, her affect was
appropriate, and her mood was euthymic. PageID 1155. Plaintiff reported
feeling depressed, but denied anxiety.
PageID 1156. She could recall six
digits forward and four digits in reverse, carry out three-step tasks, and
recall three of three objects after five minutes. Id.
depressive and anxiety disorders.
PageID 1157.
Dr. Schulz diagnosed
According to Dr. Schulz,
plaintiff could understand and apply instructions in the work setting
within the low average range of intellectual functioning, could complete
routine or repetitive tasks, could respond appropriately to coworkers and
5
supervisors in a work setting, and would have some difficulty responding
appropriately to work pressure. PageID 1158-59.
State agency psychologist David Dietz, Ph.D., reviewed the file in
November 2011 and opined that plaintiff had mild restrictions in her
activities of daily living and in maintaining social functioning; she had
moderate difficulties in maintaining concentration, persistence and pace.
PageID 143. Plaintiff’s limitation in the area of concentration and
persistence would limit plaintiff to “performing 3 to 4 step tasks where
strict production standards are flexible.” PageID 146.
In February 2012, plaintiff was evaluated by Jim Minutilli, M.S.Ed.,
a rehabilitation counselor at BVR.
PageID 1175-91. Testing placed
plaintiff in the below average range of vocational aptitude for language
usage and perceptual speed and accuracy, as well as below the high school
level in mathematics. PageID 1178. Mr. Minutilli found barriers to
employment based not only on testing results but also on plaintiff’s
reported mental health and pain concerns, and social limitations and
history.
PageID
1178. In light of plaintiff’s reported history of
difficulty in handling stress, Mr. Minutilli recommended that any attempt
at competitive employment begin with part-time work and progress to
full-time work only as tolerated and in consultation with her mental health
team and/or BVR counselor. He also recommended that plaintiff continue with
mental health treatment and medications as prescribed. PageID 1181.
In June 2012, Mr. Crook, plaintiff’s counselor at Consolidated Care,
opined that plaintiff had marked to extreme limitations in her ability to
perform work-related social interactions, concentration, persistence, and
adaptation activities.
Plaintiff was moderately impaired in her ability
to maintain her personal appearance and hygiene. He further opined that
6
plaintiff’s anxiety level, depression, and anger outbursts would be
exacerbated by the stress of a job.
PageID 1206-08.
III. Administrative Hearing and Decision
At the time of administrative hearing, plaintiff was undergoing
continued training through the BVR.
PageID 86-87. She was having “trouble
remembering the different things that I have to do.”
PageID 87.
She lived
alone in an apartment obtained through a residential housing program.
PageID 86, 90.
Plaintiff testified that she stopped working because of her “mental
stability.”
PageID 88.
Her mental issues have gotten worse and, on some
days, she cannot get out of bed or leave her house. Id.; PageID 96. She
fears that people are following her and “I just don’t like to be out. I
get frustrated or agitated or anxious.” Id. She no longer enjoys activities
that she used to enjoy. PageID 96.
Plaintiff relies on a friend’s help in completing household chores
and running errands. PageID 90-91.
She goes grocery shopping once a month,
but is accompanied by her friend. Id.
In his written decision, the administrative law judge found that
plaintiff’s severe mental impairments consist of affective and anxiety
disorders.
PageID 61. Her impairments neither meet nor equal a listed
impairment and leave plaintiff with the residual functional capacity
(“RFC”) for work that involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds;
pushing or pulling similar amounts; standing, walking, and sitting for 6
hours each; no climbing of any kind; no more than occasional ability to
perform all other postural activity; no more than frequent reaching and
7
no reaching above shoulder level; work requiring no more than a moderate
level of noise exposure, as defined in the DOT's Selected Characteristics
of Occupations; no exposure to environmental extremes, such as dust, gas,
fumes, heat, cold, humidity; no more than occasional interaction with the
public; no more than simple, repetitive tasks performed with the need for
only
regularly
scheduled
breaks
and
with
production-oriented or goal-oriented work.
the
ability
for
either
PageID 62-66.
In determining plaintiff’s RFC, the administrative law judge noted
that he considered opinion evidence in accordance with the requirements
of 20 C.F.R. §§ 404.1527 and 416.927 and SSR 96-2p, SSR 96-5p, SSR 96-6p
and SSR 06-3p.
PageID 66-67. Specifically, the administrative law judge
afforded “minimal” weight to Mr. Crook’s June 2012 opinion because it was
inconsistent with the weight of the clinical evidence of record and with
plaintiff’s own allegations, and did not provide an explanation for the
assessment (which the administrative law judge found was more consistent
with a person requiring inpatient hospitalization for stabilization of
symptoms). PageID 72. The administrative law judge gave “limited weight”
to Mr. Minutilli’s vocational evaluation because his opinions as to
plaintiff’s mental capacity relied primarily on plaintiff’s own reports
of her mental status. Id.
The administrative law judge gave significant weight to the opinions
of plaintiff’s treating psychiatrists, Drs. Wallenbrock and Bloom, finding
them to be consistent with the substantial evidence in the record. PageID
71.
The administrative law judge also assigned “significant adjudicative
weight” to the opinions of “the State Agency psychological consultants.”
Id.
8
Although this RFC precluded plaintiff’s past relevant work, the
administrative law judge relied on the testimony of the vocational expert
to find that plaintiff is able to perform a significant number of jobs in
the regional economy, including such jobs as mail clerk, photocopy machine
operator,
and
routing
clerk.
72-73.
PageID
Accordingly,
the
administrative law judge concluded that plaintiff was not disabled within
the meaning of the Social Security Act from June 16, 2010, through the date
of the administrative law judge’s decision.
IV.
PageID 74.
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
v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing
9
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 challenges the
administrative law judge’s evaluation of the opinions of plaintiff’s social
worker, Robert Crook, and the vocational evaluator, Jim Minutilli, Doc.
No. 11 at PageID 1397-1400, and complains that the administrative law judge
failed to account for plaintiff’s “significant” limitations in maintaining
concentration, persistence, or pace as well as her inability to perform
a job with production quotas, id., at PageID 1400-02, failed to mention
several exhibits in the record, including the opinion of Dr. Warren, id.,
at PageID 1402-04, and posed an improper hypothetical to the vocational
expert, id., at PageID 1404-05.
As noted supra, the administrative law judge gave “minimal” and
“limited” weight to the opinions of plaintiff’s treating social worker and
vocational counselor.
Messrs. Crook and Minutilli are non-medical
sources, i.e., they are not included in the list of acceptable medical
sources
found
in
the
404.1513(a), 416.913(a).
controlling
physicians
416.927(d).
weight
are
Commissioner’s
regulations.
20
C.F.R.
§§
Their opinions are therefore not entitled to the
or deference to which the opinions of treating
ordinarily
entitled.
See
20
C.F.R.
§§404.1527(d);
However, evidence from such other sources may be considered
“to show the severity of [the claimant’s] impairment(s) and how it affects
[the claimant’s] ability to work. . . .”
20 C.F.R. §§404.1513(d)(1);
416.913(d)(1). Among the factors to be considered in evaluating the
opinions of “other sources” are the length of time and frequency of
10
treatment, consistency with other evidence, the degree to which the source
presents relevant evidence to support the opinion, how well the opinion
is explained, whether the source has a special expertise and any other
factor supporting or refuting the opinion. SSR 06-03p, 2006 WL 2329939,
*4 - 6 (August 9, 2006). Ultimately, however, the administrative law judge
has
“discretion
to determine the proper weight to accord opinions
from ̔other sources.’”
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541
(6th Cir. 2007) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530
(6th Cir. 1997)).
This Court concludes that the administrative law judge appropriately
evaluated the opinions of plaintiff’s treating social worker and vocational
evaluator.
In considering Mr. Crook’s opinion, the administrative law
judge noted that the social worker had treated plaintiff “for a significant
period,” PageID 72, including counseling sessions “approximately every two
weeks.” PageID 63. Moreover, the administrative law judge’s finding that
Mr. Crooks’ opinion was inconsistent with the opinions of plaintiff’s
treating
psychiatrists
is
supported
by
substantial
evidence.
Dr.
Wallenbrock opined in 2010 that plaintiff had a good ability to remember,
understand,
and
follow
directions;
maintain
attention;
and
sustain
concentration, persist at tasks, and complete tasks in a timely fashion,
PageID 959, and opined in 2011 that plaintiff’s ability to remember,
understand,
and
follow
directions,
maintain
attention,
and
sustain
concentration, persist at tasks, and complete tasks in a timely fashion
were good. PageID 1111-13. Dr. Bloom opined in 2011 that plaintiff could
focus well on one thing at a time although her stress tolerance was somewhat
lower
than
average.
PageID
1115-17.
Dr.
Schulz,
the
examining
consultative psychologist, opined in November 2011 that plaintiff could
11
understand and apply instructions in the work setting within the low average
range of intellectual functioning, could complete routine or repetitive
tasks, and could respond appropriately to coworkers and supervisors in a
work
setting,
although
she
would
have
some
difficulty
responding
appropriately to work pressure. PageID 1158-59. Finally, it is clear that
the administrative law judge considered Mr. Crook’s treatment notes. See,
e.g., PageID 63, 65. The fact that the administrative law judge may not
have expressly discussed every treatment note in his written decision is
of no significance.
See Kornecky v. Comm’r of Soc. Sec., 167 F.App’x 496,
508 (6th Cir. 2006).
The administrative law judge assigned “limited weight” to the opinion
of Mr. Minutilli, finding that his statements were based on plaintiff’s
subjective statements, which the administrative law judge found to be “less
than fully credible. . . .” PageID 72. Mr. Minutilli’s report clearly relied
in large measure on plaintiff’s own reported barriers to employment. See
PageID
1178.
Significantly,
plaintiff
does
not
challenge
the
administrative law judge’s credibility determination.
In short, the Court concludes that the administrative law judge did
not err in this regard.
Plaintiff also complains that the administrative law judge’s RFC
determination failed to account for all the limitations found to be
credible.
The administrative law judge found that, from a mental
standpoint, plaintiff has the RFC to perform jobs that require no more than
“occasional interaction with the public; no more than simple, repetitive
tasks performed with the need for only regularly scheduled breaks and with
the ability for either production-oriented or goal-oriented work.” PageID
71.
Plaintiff complains that this RFC determination fails to include
12
limitations on maintaining concentration, persistence or pace and on
production or quota requirements, even though those limitations were
included in the opinions of the reviewing state agency psychologists, to
whose
opinions
the
administrative
law
judge
accorded
“significant
adjudicative weight.” See PageID 71. This Court agrees.
According to the state agency reviewing psychologists, Drs. Dietz,
and
Warren,
plaintiff
has
moderate
limitations
concentration, persistence and pace. PageID
in
the
areas
of
146, 973. All three state
agency reviewing psychologists, Drs. Lewin, Dietz and Warren, limited
plaintiff to work that does not require strict production quotas. PageID
120, 146, 973. The Commissioner recognizes the inconsistency between the
RFC as found by the administrative law judge and the opinions of the state
agency reviewing psychologists, but contends that the administrative law
judge “reasonably relied on the opinions of Plaintiff’s treating sources
over the state reviewing psychologists in creating Plaintiff’s RFC.”
Memorandum in Opposition, PageID 1422. However, this contention overlooks
the
fact
that
the
administrative
law
adjudicative weight” to these opinions.
judge
accorded
“significant
See PageID 71.
In light of this unexplained inconsistency in the administrative law
judge’s evaluation of plaintiff’s RFC, the Court cannot conclude that the
decision of the administrative law judge is supported by substantial
evidence.
It is therefore RECOMMENDED that the decision of the Commissioner be
reversed pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that the matter
13
be remanded to the Commissioner for further consideration of plaintiff’s
residual functional capacity.1
If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1);
F.R. Civ. P. 72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal the decision of
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: June 5, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
1
In light of the Court’s resolution of this issue, the Court need not, and does
not, consider plaintiff’s remaining contentions.
14
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?