Tarbert v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATION that Plaintiff's statment of errors be overruled and judgment be entered in favor of Defendant. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 12/14/2015. (agm)

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

:

Plaintiff,

:

v.

:

Case No. 2:14-cv-2450

:
Commissioner of Social Security,
Defendant.

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Tammy Tarbert, filed this action seeking review
of a decision of the Commissioner of Social Security denying her
application for supplemental security income.

That application

was filed on July 18, 2011, and alleged that Plaintiff became
disabled on July 1, 2011.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on May 22, 2013.

In a decision dated July 19, 2013, the ALJ

denied benefits.

That became the Commissioner’s final decision

on September 30, 2014, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on February 2, 2015.

Plaintiff filed her

statement of specific errors on April 9, 2015, to which the
Commissioner responded on June 30, 2015.

No reply brief has been

filed, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 40 years old at the time of the
administrative hearing and who graduated from high school, but in
LD classes, testified as follows.

Her testimony appears at pages

43-65 of the administrative record.

Plaintiff first testified that she had trouble reading big
words.

She completed her application forms on her own but had

trouble with them.
The last time Plaintiff worked was about five years before
the hearing.

She delivered papers for the Mount Vernon News.

That was a part-time job.

Before that, she worked installing

wires into circuit breaker boxes.

That was a full-time job, but

she held it only about seven months.
Plaintiff said she was being treated for bipolar disorder,
and had been receiving mental health treatment for about twelve
years.

She just recently began counseling again.

About a year

and a half before the hearing, she had surgery for a herniated
esophagus.

Plaintiff said she had frequent blackout spells as

well but was never told why and received no treatment for them.
Plaintiff’s bipolar disorder caused daily mood swings,
causing her to be angry or to cry.
sleep every night.

Night terrors interrupted her

During the day, she used a computer to visit

Facebook and play games, and she watched television.

She was

able to fix meals for herself and her mother and to drive to the
store or to doctors’ appointments.
family.

She socialized only with her

Large groups of people made her nervous.

She thought

that fear of crowds was what kept her from working.

Plaintiff

said she also was having some back problems and was going to see
a doctor about that condition.
III.

The Medical Records

The medical records in this case are found beginning on page
314 of the administrative record.

The Court will summarize those

records, as well as the opinions of the state agency reviewers,
to the extent that they are pertinent to Plaintiff’s statement of
error.
The first record of mental health treatment submitted in
connection with Plaintiff’s current application (she had
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previously applied unsuccessfully for benefits) appears to be a
note dated August 27, 2008.

That note states that the treatment

objectives were to decrease her depression and anxiety and to
achieve mood stability.

Plaintiff had decided to move to

Zanesville to help care for her stepfather.

At her intake

assessment, she had been diagnosed with bipolar disorder.
Additional counseling notes from 2008 through 2010 show that as
of December 24, 2008, Plaintiff was not taking medications.

The

diagnoses at that time included not only bipolar disorder but OCD
and possibly ODD.

The note commented that Plaintiff “has many

difficulties getting along with people and acting within
systems.”

(Tr. 326).

She was given a prescription for Tegretol.

Dr. Kahn saw her for medication management after that.

In a note

dated May 20, 2009, he commented that Plaintiff was “doing all
right” but she had run out of lithium and that she was somewhat
depressed and moody as a result.

Her mood was depressed but her

appearance, behavior, speech, and thought processes were normal.
(Tr. 323-24).

She was still “doing all right” when he next saw

her in July, 2009, and she was satisfied with her medication,
although she asked Dr. Kahn to write a note to the Ohio
Department of Job and Family Services “about her disability.”
(Tr. 322).

The note mentioned that Dr. Kahn had given her a note

“proclaiming her to be completely and permanently disabled, or
for at least 6 months....”

A note from March 24, 2010, did not

show much change, nor did notes from later that year.

A note

from January 26, 2011 stated that Plaintiff “continues well” and
that she was stable and satisfied with her medication.
447).

(Tr.

Progress notes from 2012 and 2013 from her counselor and

from Dr. Kahn are much the same.
Dr. Weaver performed a consultative examination on May 12,
2010.

He mostly tested and reported on physical restrictions (he

thought she could do light to moderate lifting and carrying) but
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also said that he saw no evidence of mental difficulties.

(Tr.

336-40).
Afterwards, Plaintiff was sent to see Floyd Sours, a
consulting psychologist.

He conducted an evaluation on October

27, 2011, reporting that Plaintiff said she suffered from
depression, anxiety, and bipolar disorder with mood swings.

She

described four suicide attempts but none in the past five years,
and no psychiatric hospitalizations.

She exhibited a minimal

range of emotion and reported poor concentration, loss of
interest, unpredictable mood swings, and interpersonal
difficulties.

Her days consisted of taking her dogs out, caring

for herself, watching television, preparing meals, and eating.
She had no hobbies and did not report socializing with any
friends.

Mr. Sours diagnosed bipolar disorder and rated her GAF

at 59 in terms of symptom severity and 61 in terms of functional
severity.

He believed she could remember and carry out

instructions in a work setting, could concentrate and persist on
simple, repetitive, and multi-step tasks, could maintain socially
acceptable behavior for up to a year, and might quit under work
pressure as that pressure built up over time.

(Tr. 559-63).

Dr.

Reece had performed a similar evaluation in 2006 in connection
with a prior application and reached much the same conclusions,
noting that Plaintiff’s mental ability to withstand the stress
and pressure of regular work activity was moderately to severely
impaired.

(Tr. 688-92).

Other documents submitted in connection

with that application included a note from a treating source, Dr.
Nadolson, to the effect that Plaintiff was capable of working
(Tr. 687), another note showing that Dr. Kahn began treating
Plaintiff in 2005 when Dr. Nadolson left the practice and that
she reported deterioration in her condition in the past few
months, and notes showing that she was “doing alright in general”
(e.g. Tr. 681) or “a lot better,” Tr. 680.
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There were also notes

showing that she was affected by a number of family situations
such as the death of her fiancé and the illness of her
stepfather.
Dr. Kahn said in a functional capacity report that he signed
on January 27, 2012, that, based on the twelve years during which
he said he had been treating Plaintiff, she had impaired
concentration and memory, and suffered from “definite,”
“considerable,” or “severe” impairments in the areas of following
directions, maintaining attention, and sustaining concentration.
(Tr. 565-67).

He also filled out a mental capacity assessment

form on April 25, 2013, indicating that Plaintiff had marked
limitations in, among others, the areas of maintaining
concentration and attention for extended periods, keeping a
schedule, completing a workday or work week without interruption
from psychologically-based symptoms, and setting realistic goals
or making plans independently of others.

(Tr. 637-39).

Finally, Dr. Lewin, a state agency reviewer, assessed
Plaintiff’s mental capacity, reporting on June 22, 2010, that she
was adopting a prior residual functional capacity finding that
Plaintiff could perform simple, routine, repetitive tasks in a
relatively static, non-crowded environment with not more than
occasional superficial contact with others.

(Tr. 369).

Dr.

Haskins, another state reviewer, did the same (Tr. 79), as did
Dr. Waggoner (Tr. 93-94).
IV.

The Vocational Testimony

Gene Burkhammer, a vocational expert, testified at the
administrative hearing.

His testimony begins at page 65 of the

administrative record.
Mr. Burkhammer began by testifying about Plaintiff’s past
relevant work.

He said that, according to records he reviewed,

Plaintiff worked as a cashier in 1997 and 1998, a job which was
light and unskilled, and in the production assembly field, also

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performing light unskilled work.
Mr. Burkhammer was then asked to answer some questions about
a hypothetical person who could do light work and who was limited
to simple, routine, repetitive tasks in a low-stress environment
involving only occasional decision-making and only occasional
changes to the work setting.

He or she also could have only

brief and superficial interaction with the public and with
coworkers.

According to Mr. Burkhammer, such a person could do

Plaintiff’s past work as a production assembler but not as a
cashier.

Such a person could also work as a housekeeping

cleaner, mail clerk, food service worker, or office assistant.
However, if the person would be off task 15% of the time on a
consistent basis, he or she could not be employed.

The same was

true for someone who consistently missed more than two days of
work per month.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1332 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
had not engaged in substantial gainful activity since her
application date of July 18, 2011.
Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including bipolar disorder, post-traumatic stress disorder, mood
disorder, obsessive-compulsive disorder, and degenerative disc
disease.

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), including sections 12.04 and 12.06.
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity

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to perform work at the medium exertional level.

She was limited

to the performance of tasks which were simple, routine, and
repetitive in nature and which could be performed in a low-stress
environment defined as requiring only occasional decision-making
and only occasional changes to the work setting.

Finally, she

was limited to occasional interaction with the public and
coworkers, so long as that contact was brief and superficial.
The ALJ found that, with these restrictions, Plaintiff could
not perform her past relevant work as a retail cashier.

However,

the ALJ concluded that she could work as a housekeeper cleaner,
mail clerk, food service worker, and clerical assistant, and that
these jobs existed in significant numbers in the region, the
State, and nationally.

Consequently, the ALJ decided that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises a
number of issues in the introductory paragraph (Doc. 11, at 1),
but argues only a single issue.

She asserts that the ALJ erred

in his analysis of the treating source opinion rendered by Dr.
Kahn.

This issue is considered under the following legal

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
Richardson v. Perales, 402

adequate to support a conclusion'"

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

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(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).
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(c); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).

However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why

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the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
Plaintiff asserts that the ALJ erred in two respects when he
did not give controlling or significant weight to Dr. Kahn’s
opinions.

She claims both that the record does not support that

evaluation, and that the ALJ did not properly articulate his
reasoning.

The Court begins its analysis by reviewing in detail

what the ALJ actually said about the opinions in question.
The ALJ devoted several pages to reviewing all of Dr. Kahn’s
treatment notes and observations, along with the consultative
examiners’ reports.

Before engaging in a direct discussion of

Dr. Kahn’s opinions, the ALJ concluded that “the generally mild
mental health findings contained in the record and documented
improvement with medication indicates that greater functional
limitation that what is set forth [in the ALJ’s decision] is not
warranted ....”

(Tr. 26).

The ALJ also found that Plaintiff’s

activities of daily living “detract[ed] from her allegations of
totally disabling mental and physical impairments” and he
described such activities as driving, watching television,
playing computer games, using social media, shopping for
groceries, preparing meals, and helping to care for her mother.
Id.
As far as the opinion evidence is concerned, the ALJ began
by discussing the three state agency opinions about Plaintiff’s
mental functional capacity.

He gave them great weight as being

“consistent with the record as a whole, which indicates some
ongoing symptoms of mental impairment, including a mildly
depressed and subdued mood and affect, but otherwise intact
memory and cognition, and normal thought processes and speech.”
(Tr. 28).

He gave great weight to Mr. Sours’ opinion for the

same reasons.

On the other had, he gave little weight to Dr.
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Kahn’s views, noting that they were inconsistent with the record
as a whole, including the same summary of the record which was
used in connection with the evaluation of the state agency
reviewers.

The ALJ also criticized the second of Dr. Kahn’s

opinions for failing to provide any narrative of objective
findings to support it and its inconsistency with his own
examination findings.

(Tr. 29).

As to the articulation requirement found in 20 C.F.R.
§416.927(c), Plaintiff argues that “the ALJ did not adequately
explain his reasons for discounting Dr. Kahn’s opinions.”
11, at 9.

Doc.

In support of that argument, she contends that the ALJ

did not adequately explain his conclusion that the record does
not support Dr. Kahn’s opinions and “fails to even mention the
length of time that Dr. Kahn has treated the Plaintiff.”

Id.

Taking this latter point first, the ALJ summarized every
treatment note from Dr. Kahn, beginning with the June 7, 2005
note (Tr. 683).

He clearly was aware of the length of the

treating relationship, and also noted the times when Plaintiff
had a gap in treatment.

Additionally, “there is no requirement

that the ALJ address each of the §404.1527(c) factors in her
opinion.”

Machiele v. Comm’r of Social Security, 2014 WL

4080240, *1 (W.D. Mich. Aug. 18, 2014).

The articulation

requirement found in §404.1527(c)(and its counterpart regulation,
§416.927(c), which applies to SSI cases) is satisfied if the
ALJ's decision is “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.”

SSR 96–2p.

The failure to mention in so many words

that Dr. Kahn had been treating Plaintiff since 2005 (and not for
twelve years, as Plaintiff contended) is not an articulation
error.
Further, the ALJ’s thorough detailing of Dr. Kahn’s records,
and his characterization of them as showing only mild findings
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and documented improvement with medication, is sufficiently
specific to allow the Court to understand the basis for the ALJ’s
decision.

This is not a case where there are a myriad of

treatment records and the ALJ makes no effort to specify which,
if any, of those records are consistent or inconsistent with a
treating source opinion.

Cf. Oblinger v. Comm’r of Social

Security, 2012 WL 1340360, *7 (S.D. Ohio Apr. 18, 2012), adopted
and affirmed 2012 WL 1656992 (S.D. Ohio May 10, 2012)(holding
that the use of conclusory language which could be used in any
case is not sufficient to satisfy the articulation requirement
applicable to treating source opinions).

Since that did not

occur here, the only remaining issue is whether the reasons which
the ALJ articulated for discounting Dr. Kahn’s opinions find
substantial support in the record.
The Court concludes that they do.

Clearly, the ALJ was

strongly influenced by the fact that Dr. Kahn’s own notes, from
2005 forward, demonstrated few abnormal signs or findings and
showed that Plaintiff’s condition was exacerbated when she had
some family issues or when she ran out of medication, but
improved and stabilized when she was receiving treatment on a
regular basis.

Plaintiff contends that Dr. Kahn was in a better

position than the ALJ to interpret his own findings, but the
state agency reviewers and consultative examiners (to the extent
they had access to Dr. Kahn’s notes) interpreted them differently
also.

The Commissioner correctly points out that inconsistencies

between treatment notes and opinions is a proper basis for an ALJ
to discount the opinions of a treating source.

See, e.g.,

Goodman v. Astrue, 2012 WL 293152, *10 (S.D. Ohio Feb. 1, 2012),
adopted and affirmed 2012 WL 931390 (S.D. Ohio Mar. 19, 2012),
citing Render v. Sec'y of Health & Human Servs., 1989 WL 34104,
*3 (6th Cir. Apr. 3, 1989).

That has been applied specifically

to psychiatric treatment notes.

See, e.g., Wilkerson v. Comm’r

of Social Security, 2013 WL 6387810, *11 (S.D. Ohio Dec. 6,
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2013), adopted and affirmed 2014 WL 1338112 (S.D. Ohio Apr. 2,
2014), where the Court held that “[t]he ALJ adequately explained
why [the treating source]’s clinical records (reflecting
relatively mild to moderate symptoms and a ‘stable’ condition)
were often inconsistent with the psychiatrist's extreme
disability opinions ....”

See also French v. Comm’r of Social

Security, 2014 WL 4594784, *7 (N.D. Ohio Sept. 15, 2014)(“it is
clear that an ALJ is permitted to treat different portions of a
medical source statement differently, so long as good reasons for
doing so are provided”).
Consequently, while it is true that Dr. Kahn treated
Plaintiff for a long period of time, it is also true that he
sometimes saw her only once or twice a year (and in some years,
not at all), and that her presentation to him was mostly normal.
She clearly experienced events which made her condition worse at
times, but that usually happened when she ran out of medication
or had not been in for treatment.

His descriptions of her as

stable, improving, doing well, and satisfied with her medication,
as well as the opinions from other mental health professionals
indicating that there are work settings which would be available
for someone with her psychological limitations, constitute
evidence from which a reasonable person could conclude that
Plaintiff was not as restricted as Dr. Kahn believed.

That being

so, the ALJ did not commit any error justifying a reversal or
remand.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Defendant Commissioner.
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
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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
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

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