Bennett v. Commissioner of Social Security Administration

Filing 21

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be sustained and that this case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 1/12/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jason F. Bennett,

:

Plaintiff,

:

v.

:

Carolyn W. Colvin, Acting
:
Commissioner of Social Security,
Defendant.

Case No.

2:15-cv-0090

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Jason F. Bennett, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his applications for social security disability benefits
and for supplemental security income.

Those applications were

filed on May 23, 2011, and alleged that Plaintiff became disabled
on April 19, 2011.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on July 13, 2013.

In a decision dated July 31, 2013, the ALJ

denied benefits.

That became the Commissioner’s final decision

on November 17, 2014, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on March 30, 2015.

Plaintiff filed his

statement of specific errors on June 30, 2015, to which the
Commissioner responded on October 3, 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 36 years old at the time of the
administrative hearing and who is a high school graduate,
testified as follows.

His testimony appears at pages 124-46 of

the administrative record.

Plaintiff first testified that his impairments included some
psychological diagnoses along with back problems, obesity, sleep
apnea, high blood pressure, and high cholesterol.

He injured his

knee in 2010 and filed a workers’ compensation claim as a result.
His back problems included scoliosis and degenerative disc
disease.

He had good days and bad days with the pain.

He could

stand for 20 to 30 minutes at a time and could walk for 30
minutes.

His knees caused problems climbing stairs.

Also, his

sitting was limited to 30 minutes, and he had a hard time
stooping or bending over.

He could lift ten pounds.

He used a

cane while walking.
Plaintiff was asked about his sleep apnea.

He said that he

used a CPAP machine but still had trouble sleeping.
he napped every day.

As a result,

Due to psychological problems, he did not

like being around people and had difficulty concentrating.
experienced panic attacks when out in public.

He

He took

medications for these problems but they caused drowsiness.
On a daily basis, Plaintiff listened to the radio and did
some minor household chores, including microwave cooking.

He was

able to use a riding mower but had to do so for short periods
only, taking breaks in between.

His wife did most of the

household chores.
III.

The Medical Records

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

The Court will summarize the

pertinent medical records as well as the opinions of the state
agency reviewers.

In this case, the pertinent records consist

primarily of treatment notes from Dr. Huspen, the treating
psychologist, and Dr. Briggs, a consultative examiner.
In his statement of errors, Plaintiff provides a
comprehensive summary of the treatment notes from Adena
Counseling Center, many of which are difficult to read.
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See

Statement of Errors, Doc. 15, at 2-9.

As a general matter, they

show that Plaintiff was complaining of anxiety and irritability
and that he had been prescribed various medications.

His

diagnoses included a mood disorder and social phobia.

At various

times, he reported an increase in symptoms and also some suicidal
thoughts.

(Tr. 409-14; 544-52; 557-58; 584-85; 623-26).

During

the course of treatment, Dr. Huspen reported to the Ohio
Department of Job and Family Services that Plaintiff had marked
limitations in five separate areas of functioning and that he was
unemployable.

(Tr. 493).

A consultative psychological evaluation was done by Dr.
Briggs on October 4, 2011.

Plaintiff told Dr. Briggs that he had

anxiety, panic attacks, and bipolar disorder.

The combination of

his physical and psychological impairments were what kept him
from working.

He was a below-average student and had some

problems getting along with teachers and classmates when in
school.

The same problems persisted when he was employed.

He

was reluctant to leave his home but could go grocery shopping
late at night if accompanied by his wife.

Dr. Briggs noted that

Plaintiff “presented as an acutely distressed, distraught, highly
anxious man” and that “his relational style was anxious and
apprehensive.”

Dr. Briggs diagnosed a dysthymic disorder,

generalized anxiety disorder, pain disorder, and dependent
personality disorder, and rated Plaintiff’s GAF at 55.

He saw

Plaintiff’s prognosis as fair and thought Plaintiff was impaired
to some extent in all work-related areas, and said that Plaintiff
was not “cognitively or psychologically capable of fully
functioning or to successfully participate within a stressful and
highly demanding work force.”

(Tr. 501-10).

Dr. Huspen, Plaintiff’s treating psychiatrist, reported on
November 11, 2012, that he had been seeing Plaintiff since March,
2010, and that Plaintiff had been diagnosed with a mood disorder,
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social phobia, and chronic pain.

His GAF was 45-50.

Symptoms

included loss of interest in activities, psychomotor agitation or
retardation, feelings of guilt or worthlessness, thoughts of
suicide, sleep disturbance, decreased energy, difficulty
concentrating or thinking, and recurrent severe panic attacks.
Dr. Huspen stated that Plaintiff had marked impairments in a
number of work-related areas including maintaining attention and
concentration, maintaining attendance, responding to supervision,
and dealing with work stress, and extreme impairments in the
areas of performing at a consistent pace and completing a workday
and work week without interruption from psychologically-based
symptoms.

(Tr. 580-82).

The records were reviewed by two state agency psychologists.
They concluded that Plaintiff had a variety of severe
psychological impairments.

The first reviewer, Dr. Hoffman,

stated that she gave great weight to Dr. Briggs’ opinion,
especially in the absence of a treating source opinion (which she
apparently had not reviewed), and that Plaintiff was not
significantly limited in his ability to carry out short and
simple instructions and was moderately limited in his ability to
maintain attention and concentration, to work within a schedule,
to work closely with others, and to deal with work stress.

He

also had restrictions in his ability to deal with changes in the
work setting, so that any work tasks should not change often or
without notice.

(Tr. 158-60).

Dr. Fernandez, the second agency

reviewer, reached much the same conclusion, noting the presence
of the first of Dr. Huspen’s two opinions (Tr. 182) but, like Dr.
Hoffman, attributing significant weight to Dr. Briggs’ opinion as
being persuasive in the absence of a treating source opinion.
She did restrict Plaintiff to superficial contact with others and
to simple tasks without strict production quotas or time demands
in a low stress environment.

(Tr. 191-93).
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IV.

The Vocational Testimony

Dr. Michael Klein was the vocational expert in this case.
His testimony begins on page 146 of the administrative record.
First, Dr. Klein testified about Plaintiff’s past work.

He

said that Plaintiff had been a hospital housekeeper, which was a
medium, unskilled job, and a material handler (for FedEx), a
heavy, semiskilled job.
Dr. Klein was asked some questions about a hypothetical
person of Plaintiff’s age, education, and work experience who
could work at the light exertional level, but who could not climb
ladders, ropes, and scaffolds and who could stoop only
occasionally.

The person also had to avoid exposure to vibration

and to moving machinery or unprotected heights.

From a

psychological standpoint, the person was limited to simple,
repetitive tasks.

He or she could maintain attention and

concentration for two-hour segments over an eight-hour work
period, could respond appropriately to supervisors and coworkers
in a task-oriented setting where contact with others was
occasional and infrequent, and could adapt to simple changes and
avoid hazards in a setting without strict production quotas.
According to Dr. Klein, someone with those limitations could not
do any of Plaintiff’s past work, but could do jobs like retail
marker, light cleaner, or sorter, all of which were light and
unskilled.

He gave numbers for those jobs in the State and

national economies.

Being unable to sit, stand, and walk in

combination for a total of eight hours would preclude gainful
employment, however, as would the need to miss more than one day
a month due to illness or being off task for 15% of the time.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages
102-14 of the administrative record.
that decision are as follows.

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The important findings in

The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 31, 2016.

Next, the ALJ determined that

Plaintiff had not engaged in substantial gainful activity since
his onset date of April 19, 2011.
Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including a depressive disorder, a panic disorder, degenerative
disc disease of the spine, osteoarthritis of the knees, sleep
apnea, hypertension, and obesity.

The ALJ also found that these

impairments did not, at any time, meet or equal the requirements
of any section of the Listing of Impairments (20 C.F.R. Part 404,
Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to work at the light exertional level, but he could not climb
ladders, ropes, and scaffolds and could stoop only occasionally.
Plaintiff also had to avoid exposure to vibration and to moving
machinery or unprotected heights and was limited to performing
simple, repetitive tasks.

He could maintain attention and

concentration for two-hour segments over an eight-hour work
period, could respond appropriately to supervisors and coworkers
in a task-oriented setting where contact with others was
occasional and infrequent, and could adapt to simple changes and
avoid hazards in a setting without strict production quotas.
The ALJ found that, with these restrictions, Plaintiff could
not do any of his past relevant work.

However, he could do the

three light jobs identified by the vocational expert - retail
marker, cleaner, and sorter.

The ALJ further found that these

jobs existed in significant numbers in the State and national
economies.

Consequently, the ALJ concluded that Plaintiff was

not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors
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In his statement of specific errors, Plaintiff raises three
issues.

He asserts that (1) the ALJ improperly evaluated

Plaintiff’s mental residual functional capacity; (2) the ALJ did
not properly evaluate the treating source opinion from Dr.
Huspen; and (3) the ALJ erred in assigning only some weight to
Dr. Briggs’ opinion.

These issues are 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

(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).
A.

Mental Residual Functional Capacity

Plaintiff’s first argument is that the ALJ did not properly
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evaluate his mental residual functional capacity.

In making this

argument, he claims that the ALJ grossly mischaracterized the
mental health treatment records.

After pointing out the

discrepancies he perceives between the evidence and the ALJ’s
summary of it, Plaintiff argues that this view of the evidence
also affected the ALJ’s evaluation of the opinions of the mental
health professionals, Dr. Huspen and Dr. Briggs.

The Court will

limit its discussion of the first claim of error to the question
of whether the ALJ fairly characterized the evidence concerning
Plaintiff’s mental health impairments.
The ALJ summarized the mental health treatment records at
Tr. 109.

He said that Plaintiff complained of depressive and

panic-like symptoms, irritability, and anger issues, and said
that he did not like being around others and suffered from panic
attacks.

Plaintiff did not demonstrate any psychotic symptoms,

made good eye contact, had a depressed and anxious mood, and,
upon consultative examination, did not have any oddities or
behavior issues or show any physical agitation.

He was

prescribed medications to control his symptoms, and reported his
depression was controlled by these medications and he was
reported on at least one occasion to be stable.

That comment was

supported by a citation to Exhibit 5F, a 69-page exhibit which
deals with physical impairments and which does not include any
notes from Dr. Huspen, and which also showed that Plaintiff
reported mood swings to the doctors who examined him for his
physical complaints.
The Court agrees that this is not the most complete or
accurate recapitulation of the record which could have been made.
That, by itself, does not translate into a reversible error,
however.

The real question is how the ALJ used his understanding

of the treatment record in dealing with the opinion evidence, and
that is the subject of the next assignment of error.
B.

Dr. Huspen’s Opinions
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The ALJ said the following about Dr. Huspen’s opinions:
The undersigned affords little weight to the
opinions of Richard Huspen, D.O. evidenced at Exhibits
16F and 35F. Dr. Huspen deemed the claimant
unemployable. This determination is one reserved for
the Commissioner. Further, Dr. Huspen opines the
claimant would miss more than 4 days of work per month.
The objective evidence contained within the evidentiary
medical record does not support this rate of
absenteeism. Additionally, he provides a much more
restrictive residual functional capacity than the
totality of the evidentiary record suggests. Thus, Dr.
Huspen’s opinion is inconsistent with the longitudinal
evidentiary medical record, is not supported by the
record as a whole, and is inconsistent with other
credible opinion evidence of record.
(Tr. 111).

The ALJ gave great weight to Dr. Fernandez’ opinion,

noting that her assessment was “consistent with, and wellsupported by the evidence of the record as a whole ....”

(Tr.

110).
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
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resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
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).
Despite the Commissioner’s effort to bolster the ALJ’s
decision as being supported by the treatment notes (“It was
reasonable for the ALJ to expect that the treatment records of an
individual with marked and extreme functional limitations would
have resulted in more significant findings beyond Dr. Huspen’s
findings of depressed mood and restricted/tense affect,”
Memorandum in Opposition, Doc. 20, at 11), the Court finds the
ALJ’s decision to be little more than boilerplate recitation of
generalities which do not aid in determining whether the decision
conforms with the law or is supported by substantial evidence.
The ALJ dismisses Dr. Huspen’s two opinions as inconsistent with
“the totality of the evidentiary record.”

That is not nearly

specific enough to satisfy the articulation requirement set out
in §404.1527(c).

As this Court said in Van Houten v. Comm’r of

Social Security, 2015 WL 792395, *6 (S.D. Ohio Feb. 25, 2015),
adopted and affirmed 2015 WL 4537244 (S.D. Ohio July 24, 2015):
It is ordinarily not enough to summarize hundreds of
pages of medical evidence and then to assert, in
conclusory fashion, that a treating source opinion is
inconsistent with or not supported by that entire body
of evidence. That is not sufficiently specific to allow
for meaningful review. Cf. Wisecup v. Astrue, 2011 WL
3353870, *8 (S.D. Ohio July 15, 2011), adopted and
affirmed 2011 WL 3360042 (S.D. Ohio Aug. 3, 2011).
Similarly, the ALJ credits Dr. Fernandez’ opinion as
“consistent with, and well-supported by the evidence of the
record as a whole,” a statement no more specific.

He did not, as

the Court noted in the preceding section of this Report and

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Recommendation, provide an accurate or detailed summary of Dr.
Huspen’s notes - and they contain more references to serious
symptoms than simply depressed mood and restricted affect,
particularly in the area of social functioning, which appears to
be the most significant of Plaintiff’s mental limitations - or
explain either why he believed the notes did not support the
opinions given or what sorts of inconsistencies existed between
those notes and Dr. Huspen’s opinions.

Clearly, a remand for a

more thorough and detailed explanation of the reasons for
rejecting a treating source opinion is in order, especially given
the fact that no state agency reviewer appeared to appreciate the
fact that a treating source opinion existed or explained why it
was not entitled to substantial weight.

In making this

determination, the ALJ is required to follow the process of,
first, determining (and explaining) whether the treating source
opinion is to be given controlling weight under 20 C.F.R.
§404.1527(c) as “well-supported by medically acceptable clinical
and laboratory diagnostic techniques” and “not inconsistent with
other substantial evidence” in the case; and, only if the ALJ
determines that it is not entitled to such weight, to decide
(and, again, explain) the weight to be given to the treating
source opinion taking into account the other relevant factors
laid out in that regulation.

See Gayheart v. Comm'r of Social

Security, 710 F.3d 365, 375–76 (6th Cir. 2013).
C.

Dr. Briggs’ Opinion

Plaintiff also asserts that the ALJ did not properly
evaluate the consultative report authored by Dr. Briggs.

The ALJ

gave that report only “some weight,” reasoning that
Dr. Briggs opines the claimant would have some
impairment in his ability to understand, remember, and
carry out instructions, his ability to maintain
attention and concentration, his ability to respond
appropriately to supervisors and coworkers, and his
ability to respond appropriately to work pressures in a
work setting. Dr. Sylvester (sic) does not provide an
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exact restriction as to how limited the claimant is in
each area of functioning. However, his opinion that
the claimant is limited is largely supported by the
evidentiary record and is generally consistent with the
other credible opinion evidence of record. Such
limitations are provided for in the residual functional
capacity assessed above.
(Tr. 111).
The Court agrees that this treatment is inadequate.

Dr.

Briggs’ opinion was given significant weight by Dr. Fernandez
(although that appears to have been based in part on her
statement that there was no treating source opinion, an incorrect
statement when made), and the presence of a more restrictive
treating source opinion would suggest giving more, not less,
weight to Dr. Briggs’ view that Plaintiff could not sustain
employment.

The ALJ appears to suggest that his residual

functional capacity finding is largely consistent with that of
Dr. Briggs, but that does not represent a fair reading of the
consultative examination report.

From the way in which Dr.

Briggs described Plaintiff’s presentation to the way in which he
worded his conclusions, a reasonable person would have determined
that Dr. Briggs entertained serious doubts about Plaintiff’s
ability to function adequately in any work-related area.

The ALJ

either misinterpreted the opinion or simply chose to
mischaracterize it in a way that supported his decision.

A more

objective reading of the record is in order, and, perhaps, an
updated opinion from a medical expert who had the benefit of the
opinions of Dr. Huspen and understood them to come from a
treating source.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained and that this case
be remanded to the Commissioner pursuant to 42 U.S.C. §405(g),
sentence four.
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VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
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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