Sacks v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner pursuant to 42 U.S.C.§405(g), sentence four. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 3/21/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Charitie Marie Sacks,

:

Plaintiff,

:

v.

:

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

Case No.

2:15-cv-2315

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Charitie Marie Sacks, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for social security disability benefits
and supplemental security income.

Those applications were filed

on February 22, 2012, and alleged that Plaintiff became disabled
on November 1, 2011.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on October 4, 2013.

In a decision dated December 5, 2013, the

ALJ issued a decision denying benefits.

That became the

Commissioner’s final decision on April 6, 2015, when the Appeals
Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on August 7, 2015. Plaintiff filed her
statement of specific errors on September 11, 2015, to which the
Commissioner responded on November 30, 2015.

No reply brief was

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

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 31 years old at the time of the
administrative hearing and who is a high school graduate with
three years of college work, testified as follows.

Her testimony

appears at pages 44-70 of the administrative record.
Plaintiff first testified that she had a nervous breakdown
on November 1, 2011.

She was very anxious when she woke up that

day and was not able to function.

She said that November and

December were difficult months for her due to past deaths of
relatives or people she was close to, and that those might have
been the triggers for her breakdown.
Plaintiff saw a physician for back pain once every three
months.

She saw her psychiatrist monthly and her case manager

several times per month.

She was taking anti-anxiety medications

but they helped her condition only to a certain extent.
As far as why she could not work, Plaintiff said that the
type of work she was qualified for required constant standing and
lifting.

She was unable to do those activities.

she did not handle stressful situations well.

Additionally,

She could

understand and remember simple instructions, but had a temper and
did not always get along with co-workers and supervisors or with
the public.
hazards.

She could make simple work decisions and avoid work

Plaintiff said she could not sit and work at a computer

all day due to back pain, could barely walk down the street, and
could not lift children.

She could carry two gallons of water

but lifting put a strain on her back which radiated into her
hips, legs, and shoulders.

She also found it stressful to be

around too many people.
Plaintiff testified that her depression caused her to lose
sleep.

She also had crying spells several times per week.

was prone to bouts of anger and sadness as well.

She

She explained

that her last job, which was telephone sales, agitated her
because of the constant phone calls.
family members but no one else.

She did socialize with

She had panic attacks several

times a week, which lasted for thirty minutes to an hour.

She

could tolerate shopping if there were not a lot of people around.
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When asked to describe her back pain, Plaintiff said that it
a constant sharp pain across her entire back.
both legs, but more so on the right side.
reduce the pain.

It radiated into

Medication helped to

Her most comfortable position was lying down.

Any activity could exacerbate her pain or cause her legs to
become numb.

She could stand for five or ten minutes, walk a

block, and sit for 30 to 45 minutes.

She could not sit through

an eight-hour work day even with changing positions.
climb a flight of stairs, but slowly.

She could

Plaintiff left her

apartment only once a week, usually for medical appointments, and
avoided using public transportation.

She had to lie down several

times a day for 30 to 45 minutes.
III.

The Medical Records

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

The pertinent records - those

relating to Plaintiff’s psychological conditions - can be
summarized as follows.
In 2001, when Plaintiff was 19, she drove her car down an
embankment and into a wall in an apparent suicide attempt.

She

was treated at an emergency room for back strain and depression
with suicidal ideation.

(Tr. 304).

She then spent five days in

the hospital where she was diagnosed with bipolar affective
disorder.

Her GAF was rated at 60 on the date of discharge, and

she had responded well to medication and therapy.

(Tr. 316-17).

On January 17, 2012, Plaintiff was seen at Netcare, having
been brought there by the Columbus police department.

She had

expressed thoughts of suicide in letters to her family.
Plaintiff reported having had mood swings and sleep disturbance
all of her life and symptoms of anxiety for several years.
had not had mental health treatment for ten years.

Her mood was

depressed but calm and she was oriented and logical.
rated at 19 and hospitalization was recommended.
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She

Her GAF was

(Tr. 332-36).

She was subsequently admitted to the hospital with a diagnosis of
depressive disorder.

At that time, she denied being suicidal but

expressed interest in receiving counseling.
was 70.

(Tr. 344-46).

Her GAF on discharge

She then began counseling with North

Central Mental Health Services.
At the first counseling session, Plaintiff was described as
being able to complete activities of daily living at an adequate
level of functioning.

Her GAF was rated at 50 and she was

diagnosed as suffering from bipolar II disorder without psychotic
features.

Other notes indicate a diagnosis of PTSD.

On April 26, 2012, Dr. Tilley, a psychologist, completed an
assessment form for the Ohio Department of Job and Family
Services.

He said Plaintiff had ten separate moderate

limitations in her ability to perform work-related functions from
a mental standpoint.

His narrative report indicated that

Plaintiff showed signs of anxiety (although she also seemed to be
“passively uncooperative”) and that her responses, which he
deemed to be unreliable, were “a facet of her personality
pathology.”

He diagnosed a borderline personality disorder and

rated her GAF at 50, finding her unemployable and rating her
moderately impaired in every category which involved dealing with
or relating to others in the workplace.

(Tr. 373-75).

There are a number of treatment notes from North Central
which are part of the record.

The handwritten portion of those

notes is very hard to decipher.

They generally showed that

Plaintiff carried multiple diagnoses including a mood disorder,
PTSD, and bipolar disorder, and that she presented with a
depressed, anxious, and irritable mood and, at times, with
abnormal concentration, although her attention and cognition were
normal.

Social anxiety is also noted, and by November 1, 2012,

there was a documented increase in both depression and anxiety.
(Tr. 398).

Dr. Bhatia completed an assessment form on after a
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June 12, 2013 examination indicating that Plaintiff was
experiencing either marked or extreme limitations in a variety of
work-related functions and that she was not employable.
408).

(Tr.

Dr. Bhatia followed that up with a letter dated October

18, 2013 in which she stated that Plaintiff suffered from major
depressive disorder, that she had been compliant with her
medication regimen for over a year, that she continued to
experience depression and irritability as well as racing
thoughts, and that she would not likely return to a state where
she could function well enough mentally to work any time in the
near future.

(Tr. 457).

In addition to these records of treatment, state agency
psychologists expressed an opinion as to Plaintiff’s mental
residual functional capacity.

Dr. Steiger concluded, on April

18, 2012, that Plaintiff had moderate limitations in the area of
dealing with detailed instructions but could carry out one- or
two-step tasks.

She also was capable of superficial social

interactions and could do work that did not require strict
production standards.

(Tr. 88-90).

Dr. Warren, who had the

benefit of some additional treatment records from North Central
but not Dr. Bhatia’s opinions, reached exactly the same
conclusions.

(Tr. 118-20).
IV.

The Vocational Testimony

Dr. John Finch was called to testify as a vocational expert.
His testimony begins at page 70 of the administrative record.
Dr. Finch described Plaintiff’s past employment as a
customer service sales person, which was sedentary and semiskilled; as a sales representative, a light, skilled job; and as
a preschool teacher, which was light and skilled as well,
although Plaintiff may have performed it at a higher exertional
level.
Mr. Pruitt was then given a hypothetical question which

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asked him to identify any jobs which could be done by someone who
could lift and carry at the light exertional level, occasionally
climb ramps and stairs but never ladders, ropes or scaffolds,
frequently balance, and occasionally kneel, crouch, stoop, or
crawl.

The person also had to avoid unprotected heights and

hazardous machinery.

From a psychological standpoint, the person

was limited to the performance of simple, routine, and repetitive
tasks, could be off-task for five percent of the workday, could
have occasional interaction with supervisors, co-workers, and the
general public, and was limited to low-stress jobs that involved
only occasional changes in the work setting and did not require
assembly line work.

Dr. Finch responded that such a person could

do not do any of Plaintiff’s past work.

He or she could work as

a mail clerk, a cleaner, or a garment folder, however.

Those

jobs would accommodate someone who had to adjust positions
briefly.
A second hypothetical question was then asked, which
described someone who was limited to sedentary work but had all
of the other restrictions described in the first hypothetical
question.

According to Dr. Finch, that person could work as a

table worker, inspector, or document preparer.

He gave numbers

for all of these jobs as they existed in the regional, State, or
national economies.
Next, Dr. Finch was asked whether certain additional
limitations would be work-restrictive.

He said that needing

frequent supervision was inconsistent with employment, as was
being off task more than 15% of the time, being able to tolerate
only incidental contact with supervisors and co-workers, or
needing four fifteen-minute unscheduled work breaks.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 2435 of the administrative record.

The important findings in that

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decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through September 30, 2015.

Next, the ALJ determined that

Plaintiff had not engaged in substantial gainful activity since
her onset date of November 1, 2011.

Going to the second step of

the sequential evaluation process, the ALJ concluded that
Plaintiff had severe impairments including obesity, lumbar spine
spondylolysis, sciatica, and affective, anxiety, and personalityrelated disorders.

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 perform sedentary work.

She could frequently balance and

could occasionally climb ramps and stairs, kneel, crouch, stoop,
or crawl.
machinery.

She had to avoid unprotected heights and hazardous
From a psychological standpoint, she could be off-

task for five percent of the workday was limited to the
performance of simple, routine, and repetitive tasks in a lowstress environment that involved only occasional changes in the
work setting and did not require assembly line work.

Finally,

she could have only occasional interaction with supervisors, coworkers, and the general public.

With these restrictions, the

ALJ concluded that Plaintiff could not perform her past relevant
work.

Somewhat inconsistently, the ALJ then found that Plaintiff

could perform the light jobs identified by Dr. Finch.
Consequently, the ALJ determined that Plaintiff was not entitled
to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises two

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issues: (1) the ALJ erred in the weight assigned to the opinion
of the treating psychiatrist, Dr. Bhatia; and (2) the ALJ erred
by finding that Plaintiff could perform light jobs even though
she was limited to sedentary work.

These issues are evaluated

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.

Dr. Bhatia’s Opinion

It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight

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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
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).
As in any case where the ALJ’s rationale in rejecting the
opinion of a treating source is called into question, it is
helpful to explain exactly what the ALJ decided.

Here is what

the ALJ said about Dr. Bhatia’s opinion.
The ALJ first cited to the state agency psychologists’
opinions and found that they accurately reflected Plaintiff’s
mental limitations, although the ALJ added a limitation
concerning being off task for 5% of the workday.

Dr. Tilley’s

assessment, which the ALJ interpreted as assessing no greater
than moderate work limitations (although there were quite a
number of these, which, in Dr. Tilley’s view, made Plaintiff
unemployable), was given little weight.
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Finally, Dr. Bhatia’s

opinions were also given little weight because, first, “the
question of disability is a matter reserved for the Commissioner”
(Tr. 31), and second, “Dr. Bhatia’s opinion and indication of
marked and extreme limitation are inconsistent with the medical
evidence of record, the claimant’s actual activities of daily
living (as summarized below), and her own testimony in which she
said that she could understand, remember, and carry out simple
instructions.”

(Tr. 32).

After so concluding, the ALJ discussed

GAF scores (giving them little weight as well), the credibility
of Plaintiff’s testimony, and the fact that Plaintiff was able to
live alone, listen to music, clean, prepare meals, take care of
her personal needs, go to medical appointments, shop once a
month, handle her checkbook, watch television, and talk on the
phone daily.

According to the ALJ, this “level of activity is

not consistent with the level and persistence of symptoms that
[Plaintiff} alleges,” nor was her regime of conservative medical
treatment.
Plaintiff asserts that the reasons given by the ALJ are too
conclusory to satisfy the regulatory “good reason” requirement.
In particular, she notes that the ALJ did not specifically
identify what medical evidence was deemed to be inconsistent with
Dr. Bhatia’s opinion, and she contends that the treatment notes
prepared by Dr. Bhatia, which showed only minimal improvement
despite a lengthy course of treatment, fully support the doctor’s
opinions.

So, too, do the records indicating Plaintiff’s

treatment with Netcare after she expressed suicidal thoughts and
the six days of inpatient treatment she underwent after Netcare
was unable to stabilize her.

Finally, Plaintiff argues that Dr.

Tilley’s findings lend additional support to Dr. Bhatia’s
opinions.
In response, the Commissioner characterizes Plaintiff’s
argument as nothing more than a disagreement with the ALJ’s
weighting of the medical opinions and contends that even Dr.
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Bhatia’s own treatment notes do not support the opinions
rendered.

The Commissioner points out that consistency with the

record is the hallmark of a valid medical opinion, and argues
that the ALJ had a substantial basis for determining that such
consistency did not exist here.
There are a number of problems with the Commissioner’s
argument.

First, the ALJ did not mention the alleged

inconsistency between Dr. Bhatia’s treatment notes and her
opinions as a basis for discounting her opinion.

As this Court

has said, “‘[I]t is the opinion given by an administrative agency
rather than counsel's ‘post hoc rationale’ that is under the
Court's consideration.’” Evans v. Comm’r of Social Security, __
F.Supp.3d __, 2015 WL 4592449, *5 (S.D. Ohio Aug. 18, 2015),
quoting Romig v. Astrue, 2013 WL 1124669, *6 (N.D. Ohio Mar. 18,
2013) (citations omitted).

Second, although the ALJ made a

general statement about inconsistencies between Dr. Bhatia’s
opinions and the “medical evidence of record,” it was just that a general statement devoid of any specific reference to any
portion of the medical evidence.

Such conclusory statements do

not provide the claimant with any ability to understand their
content, nor do they provide a reviewing court with the ability
to decide if the ALJ correctly or incorrectly assessed those
claimed inconsistencies.

As this Court explained in Hardy v.

Comm'r of Social Security, 2013 WL 4546508, *5 (S.D. Ohio Aug.
28, 2013), adopted and affirmed 2014 WL 1091718 (S.D. Ohio March
18, 2014):
One of the reasons why an ALJ must articulate the basis
of his or her rejection of a treating source's opinion
is to allow the reviewing Court to determine if the
rejection is properly based upon the evidence of
record. See Wilson, supra; see also Bowen v. Comm'r of
Social Security, 478 F.3d 742, 749 (6th Cir. 2007)
(“the goals of § 1527(d)(2) cannot be satisfied by bald
speculation”). As the Court of Appeals has observed,
“it is not enough to dismiss a treating physician's
opinion as ‘incompatible’ with other evidence of
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record; there must be some effort to identify the
specific discrepancies and to explain why it is the
treating physician's conclusion that gets the short end
of the stick.” Friend v. Comm'r of Social Security,
375 Fed. Appx. 543, 552 (6th Cir. Apr. 28, 2010). See
also Blackburn v. Colvin, 2013 WL 3967282, *7 (N.D.
Ohio July 21, 2013) (finding the ALJ's articulation of
this factor inadequate because “[w]hile the ALJ
concluded that the treating physician's opinions were
inconsistent with the medical evidence, he does not
offer any explanation for his conclusion”). The same
is true here; ... there is absolutely nothing in the
ALJ's decision which would allow either the plaintiff
or this Court to determine what part of the medical
record the ALJ found to be inconsistent with [the
treating source]'s opinions.
The undifferentiated generality of this statement strongly
supports a remand.
The other rationales provided by the ALJ do not provide
enough support for the decision to overcome this articulation
error.

Plaintiff’s activities of daily living, at least as

Plaintiff described them in her testimony, are not significantly
inconsistent with how Dr. Bhatia described her.

Plaintiff also

described bouts of temper, affecting her ability to get along
with others, problems dealing with stress, and a depressed mood
with crying spells.

She said she had panic attacks frequently

and that they could last for thirty minutes to an hour.

These

are all consistent with Dr. Bhatia’s assessment of marked or
extreme impairments in Plaintiff’s ability to stay within a
schedule, work in close proximity to others, respond
appropriately to supervisors, get along with coworkers, and deal
with work stress.

Her activities, which she described as

essentially being house-bound except for going to medical
appointments or to the grocery store and socializing only with
family members, are also not so contradictory to Dr. Bhatia’s
views that they undercut them substantially.

There is also the

issue of Dr. Tilley’s report, which, although it did not, as the
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Commissioner notes, find any limitations to be more than
moderate, found ten such limitations, something ordinarily
problematic for sustained employment.

Given the lack of

specificity in the ALJ’s reasoning and the weakness of the
rationales which were articulated, a remand is needed.
B.

Light or Sedentary Work

The only other issue raised in the statement of errors
relates to the ALJ’s finding that Plaintiff could do only
sedentary work, but relying on that portion of the vocational
expert’s testimony about light jobs.

That is likely, as the

Commissioner argues, harmless error since the vocational expert
also identified sedentary jobs which someone with the assumed
residual functional capacity could perform, but a remand on the
first issue raised renders this matter moot.
VII.

Recommended Decision

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