Puterbaugh v. Commissioner Social Security Administration
Filing
17
REPORT AND RECOMMENDATIONS re 2 Complaint filed by Julie Puterbaugh - IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioner's non-disability determination be AFFIRMED; and 2. The case be terminated on the docket of this Court. Objections to R&R due by 8/19/2013. Signed by Judge Magistrate Judge Sharon L. Ovingtonon 08/02/13. (pb1) Modified on 8/2/2013 - To correct signature of the Judicial Officer who originally signed, counsel notified(pb1).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JULIE M. PUTERBAUGH,
Plaintiff,
:
:
Case No. 3:12cv00031
vs.
:
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.
District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington
:
:
:
REPORT AND RECOMMENDATIONS1
I.
Introduction
Plaintiff Julie M. Puterbaugh brings this case challenging the Social Security
Administration’s denial of her applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits (DIB). Plaintiff protectively filed2 her SSI and DIB
applications on November 9, 2006, asserting that she has been under a “disability” since
May 16, 2006.3 (PageID## 910-12; 913-15). Plaintiff claims to be disabled due to a
1
Attached hereto is NOTICE to the parties regarding objections to this Report and Recommendations.
2
A protective filing date is the date a claimant first contacted the Social Security Administration
about filing for disability benefits. It may be used to establish an earlier application date than when the
Social Security Administration received the claimant’s signed application. See http://www.ssa.gov/glossary.
3
Plaintiff amended her alleged onset date of disability to be March 13, 2007. (PageID# 855).
1
“back injury, pinched nerve, depression, asthma, [and] spinal stenosis.” (PageID## 776,
910, 913, 929).
After various administrative proceedings, Administrative Law Judge (ALJ)
Thomas R. McNichols II denied Plaintiff’s applications based on his conclusion that
Plaintiff’s impairments did not constitute a “disability” within the meaning of the Social
Security Act. (PageID## 776-793). The ALJ’s nondisability determination and the
resulting denial of benefits later became the final decision of the Social Security
Administration. This Court has jurisdiction to review the administrative denial of her
applications. See 42 U.S.C. §§ 405(g), 1383(c)(3).
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. # 12), the
Commissioner’s Memorandum in Opposition (Doc. # 14), Plaintiff’s Reply (Doc. # 16),
the administrative record (Doc. # 11), and the record as a whole.
II.
Background
A.
Plaintiff’s Vocational Profile and Testimony
Plaintiff was 42 years old on her alleged disability onset date, which defined her as
a “younger individual” for purposes of resolving her DIB and SSI claims. See 20 C.F.R.
§§ 404.1563(c); 416.963(c)4; (PageID# 791). Plaintiff has a high school education, and
trained to work at a travel agency in 1984. (PageID# 810-11).
4
The remaining citations will identify the pertinent DIB Regulations with full knowledge of the
corresponding SSI/DIB Regulations.
2
Plaintiff is single, and has three children. (PageID# 807). Two of them live on
their own, the other lives with her father, but stays with Plaintiff during the weekends.
(Id.). Plaintiff lives in an apartment, but testified she stays there only on the weekends
when her children visit. (PageID# 808). The remaining time she stays with her sister at
her sister’s house. (Id.). She testified she is never alone. She stated, “I don’t feel
comfortable by myself. I have a lot of anxiety from my stroke. I’m afraid of falls.
Afraid I’ll leave appliances on because I have memory problems.” (PageID# 808).
Plaintiff testified prior to having her stroke in March 2007, she lived independently. (Id.).
Plaintiff testified she does not have a driver’s license, and that her social worker
drove her to the hearing. (PageID# 809). She stated she used to have a driver’s license,
but lost it due to her stroke, which caused her to lose half of her vision. (PageID# 80910). According to Plaintiff, she has “no left peripheral vision at all.” (PageID# 810).
She stated she can “see what’s in front of me and on the right side of me, but nothing on
the left.” (Id.).
Plaintiff stated she last worked around May 2006, working part-time as a cashier.
(Id.). She testified she stopped working due to pain in her back, and still has constant
lower back pain. (PageID# 812). Plaintiff testified she had two surgeries: “one for a
herniated disc. When they did that surgery they found out there was a defect in the
vertebrae between the L5 and S1 and those had to be fused during the second surgery.
(Id.). She stated these surgeries helped, until she slipped on black ice in 2006. (PageID#
3
813). She stated since then the pain has continued, she takes pain medication, and that
“there’s nothing else that can be done” by her doctors to help her back. (PageID# 814).
Plaintiff stated she was prescribed a cane, and testified she uses it all the time. (Id.).
In addition to her back problems, Plaintiff testified she experienced vision loss
from her stroke. (PageID# 816). She also stated she suffered from memory loss and
anxiety as a result of the stroke. (Id.). She stated she has “a problem retaining recent
information. For example, if I would see you on the street tomorrow, it would be likely
that I would not remember you as being my judge today.” (Id.). She stated she does not
receive treatment for her vision, and that there is nothing else that can be done to help.
(PageID# 817). Plaintiff stated she can still read, but “[i]t’s more tiring now.” (Id.).
Plaintiff also stated her stroke has caused her anxiety in social settings. (Id.). She
stated that “in groups of people more than three, especially strange people, people that
[she doesn’t] know. . . . [she has] a hard time breathing . . . sweating and [her] heart
races.” (Id.). She also stated she has panic attacks when she is in a large group of people,
which is approximately once a month. (PageID# 818). Plaintiff stated she goes to
counseling once a month. (PageID# 819). She has never been hospitalized for
psychological problems, and stated her counseling helps. (Id.). She stated she also sees
her psychiatrist once every three months, and her family doctor usually about once a
month. (Id.). She sees her eye doctor once a year for an exam. (PageID# 820).
As to medications, she stated she feels tired as a side effect. (Id.). Plaintiff
testified that on a scale of zero to ten, with ten being the worst pain imaginable, her pain
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is typically about an eight. (PageID# 821). She stated her pain “goes from [her] low
back into [her] hip area and it also goes down [her] leg, all the way down to [her] foot.”
(Id.). Plaintiff testified that with her medication, the level will go down to a five.
(PageID# 822). Plaintiff stated she is most comfortable lying down, but that she often
wakes up at night because of the pain and has trouble going back to sleep. (PageID#
822).
Plaintiff estimated she can walk no more than ten minutes at a time, and would
need her cane while walking. (Id.). She testified if she is standing, and “moving around,”
she could do so for about ten minutes. (PageID# 823). She stated she can sit for about
20 minutes, and is able to use her arms, hands, and fingers. (Id.). She estimated she
could lift “maybe 10 pounds” at one time using both arms and hands, and is able to climb
stairs “slowly” and “with difficulty.” (Id.). She does not believe she could go back to
work because she would be in “extreme pain” due to sitting too long, and due to vision
and balance problems from her stroke. (PageID# 824).
Plaintiff testified that she can cook in the microwave and wash a small amount of
dishes. (PageID# 825). She testified she does not sweep, mop, or vacuum; does not
wash clothes; does not make beds; and does not typically go grocery shopping. (PageID#
826). She testified her children do these for her. (Id.). She testified she does not visit
friends or relatives, however, relatives come to visit her. (Id.). She stated she does not go
to the movies, and the only hobby she has is reading a book about once a month.
(PageID# 827). She stated she does not participate in any kind of sports, does not
5
exercise, does not do yard work or garden, and has not taken any trips outside of Ohio
since her alleged onset date of disability. (PageID# 827).
Plaintiff testified that she does not drink alcohol, although she used to before the
stroke in 2007. (PageID# 827-28). She testified she previously used crack cocaine, but
has not done so since having her stroke. (PageID# 828). She testified she is able to feed,
dress, and groom herself. (Id.).
Plaintiff explained that on a typical day she gets up around seven or eight in the
morning, dresses herself, brushes her teeth, and maybe eats some breakfast. (PageID#
829). After this, she watches television in the morning, may make a phone call, and may
check her e-mail for a little. (Id.). She stated she spends no more than 15 minutes on the
computer, however, due to her back pain. (PageID# 829). She stated she usually eats
lunch, and watches more television in the afternoon. (PageID# 829-30). She stated that
she usually watches television with her children when they visit her on the weekends.
(PageID# 830).
She testified that her anxiety distracts her and keeps her from staying on task. She
claims that her vision prohibits her from being able to see obstacles that are on the
ground. (PageID# 840). She believes it is a safety issue. (Id.).
Plaintiff amended her alleged onset date of disability to March 13, 2007 – the date
of her stroke. (PageID# 855).
B.
Medical Opinions
1.
Plaintiff’s Physical Health
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Plaintiff underwent a consultative examination with Damian M. Danopulos, M.D.,
on January 30, 2007. (PageID# 1084-88). Dr. Danopulos noted that Plaintiff had four
major complaints at the time: 1) low back pain with pain in the right down to her foot, 2)
hypertension, 3) asthma, and 4) depression. (Id.). Dr. Danopulos noted that Plaintiff
reported injuring her back in May 2005, when she had to lift “very heavy patients,” in her
job as a home health aide. (Id.). He noted that she had an MRI which showed she had a
herniated disc on the left between L5-S1, and a discectomy performed on August 15,
2005. He stated “[s]he did okay up until March 2006 when she fell on ice and reinjured
her low back.” (Id.).
Dr. Danopulos noted that “[o]n clinical examination spine was painful to pressure
in the lumbo/sacral area. Straight leg raising was negative in the left and was triggering
right buttock and right leg pain. Lumbar spine motions were restricted and painful.”
(PageID## 1087-88). He opined that “her ability to do any work-related activities like
lifting and carrying is affected in a negative way from her lumbar spine arthritis with
right-sided radiculopathy,” and “[s]he cannot lift more than 15 lbs. at a time.” (PageID#
1088).
Thereafter, Plaintiff was hospitalized, on March 13, 2007, for unresponsiveness
and mental status change. (PageID# 1102). It was suspected this resulted from an
overdose of cocaine. (Id.). It was concluded that Plaintiff suffered a myocardial
infarction (heart attack) and right posterior cervical artery cerebrovascular accident
7
(stroke) with a residual left visual field defect. (PageID# 1109-1120). On March 26,
2007, Plaintiff was discharged. (PageID# 1111).
On April 9, 2007, Plaintiff was admitted to the Intensive Care Unit due to another
suspected overdose of cocaine. (PageID# 1161). A drug screen performed at that time
tested positive for cocaine. (Id.).
An MRI of Plaintiff’s lumbar spine was performed on April 20, 2007. (PageID##
1177-78). The report indicated a broad-based disc herniation at L5-S1 with bilateral
foraminal stenosis, and mild encroachment upon the central canal. (Id.). There was also
mild desiccation at L5-S1. (Id.).
On July 5, 2007, Philip Minella, M.D., performed a lumbar laminectomy and
fusion procedure on Plaintiff at L5-S1. (PageID## 1222-24). During a five week post op
exam, Dr. Minella reported that Plaintiff “seems to be doing well,” and that “[s]he denies
any leg pain or much in the way of back pain.” (PageID# 1274).
On October 3, 2007, state agency reviewing physician Gerald Klyop, M.D.,
reviewed the medical evidence and completed a physical residual functional capacity
assessment. He opined that Plaintiff could lift, carry, push and pull no more than 20
pounds occasionally and 10 pounds frequently; stand and/or walk for approximately 6
hours in an 8 hour workday; and sit for approximately 6 hours in an 8 hour workday.
(PageID# 1277). Dr. Klyop noted that Plaintiff’s “sensation was intact,” and limited her
to only occasionally stooping and climbing ladders, ropes, or scaffolds. (PageID# 12781283). He found that no other limitations were needed. (Id.).
8
After Plaintiff participated in recommended physical therapy, Carlos Jordan, M.D.,
reported on September 18, 2008, that she was “almost pain free.” (PageID## 14081410). He noted that Plaintiff had only “some” limited range of motion, secondary to
pain in the right leg, and recommended she only use over-the-counter pain medications.
(Id.). On December 22, 2008, Dr. Jordan reported that Plaintiff’s back pain was “wellcontrolled” by pain injections. (PageID# 1393). It was noted on May 9, 2009, that
Plaintiff’s back pain was “mild in intensity and is occurring on an intermittent basis,”
however, treatment was reducing her symptoms and her “condition is improving.”
(PageID# 1583). Dr. Jordan submitted an assessment form to the Ohio Department of
Job and Family Services on May 30, 2009, indicating that Plaintiff’s health status was
good and stable with treatment. (PageID# 1585-86). He offered no opinion as to any
restrictions or functional limitations Plaintiff may have. (Id.).
On October 9, 2008, Lori Holmes, O.T.R., reported the following scores obtained
by Plaintiff on a visual acuity test: far visual acuity - 20/30 on the right and 20/30 on the
left; near visual acuity - 20/30 on the right and 20/20 on the left; and peripheral vision 90 degrees on the right and 5-10 degrees on the left. (PageID# 1337). Ms. Holmes
reported that Plaintiff had a visual field of 95 to 100 degrees. (Id.).
2.
Plaintiff’s Mental Health
Plaintiff was examined by Gordon Harris, Ph.D., on August 1, 2008, at the request
of the Ohio Bureau of Disability Determination. (PageID# 1249). During the exam, she
reported that on a typical day she “gets up and eats breakfast, watches TV, and goes to the
9
grocery with her mother. They either eat lunch out or [she] comes home and eats lunch.
She will stay in bed and watch TV the rest of the day.” (PageID# 1251). She reported
that she can only cook “simple things” since her stroke; is able to shop or at least walk
around a store; is not able to do any house work due to her back; does laundry; handles
her own finances; no longer drives; and made one attempt at riding a bus. (Id.). She
initially reported that she does not have any hobbies, but later indicated that she makes
blankets and completes puzzle books. (Id). She reported no difficulty with self-care or
personal hygiene. (Id.). She reported to Dr. Harris that she used cocaine from 2001 to
2006, “off and on.” (Id.). She reported she only drinks alcohol on social occasions and
“is not a problem.” (Id.). She attends a drug program to deal with her history of drug
use. (Id.).
Dr. Harris reported that during the course of her evaluation, Plaintiff’s rate,
rhythm, volume, and quantity of speech were normal; articulation was clear; thought
processes were fluid, logical, and goal-directed; she exhibited a broad, full range of
affect; her mood was euthymic; and psychomotor activity was normal and eye contact
was good. (Id.). Dr. Harris concluded that Plaintiff’s ability to understand instructions
would be unimpaired, as would her verbal processing and verbal skills. (PageID# 1253).
He believed her ability to following instructions is moderately impaired by her memory
deficits. (Id.). Dr. Harris also concluded that Plaintiff’s ability to maintain attention to
perform simple multi-step repetitive tasks does not appear to be impaired, nor does her
ability to relate to others, including fellow workers and supervisors. (Id.). Dr. Harris
10
believed that Plaintiff’s ability to withstand the stress and pressure associated with day-today work activities would be moderately impaired due to the stress of the physical
problems she has. (Id.). He believed she was capable of managing benefits if granted on
her behalf. (Id.).
On June 28, 2007, Psychiatrist Julie Gentre, M.D., completed a Mental Status
Questionnaire. (PageID# 1215). She stated that she first started seeing Plaintiff on June
1, 2007. (Id.). She noted that Plaintiff’s affect was typically normal, but that she did
experience depression thought the day, sometimes got confused, and did have some
memory impairments. (Id.). Dr. Gentre believed that Plaintiff was unable to retain
information and had problems following verbal directions. (PageID# 1215-16). She
thought Plaintiff could maintain attention on one task for up to 20 minutes, was unable to
multi-task, but could perform repetitive tasks. (PageID# 1215-16). Dr. Gentre stated that
Plaintiff had chronic alcohol and drug use, and that due to her anxiety, tended to isolate
herself from others and had difficulty adapting to new environments, but could get used
to new situations after time. (PageID# 1216).
On August 7, 2007, Psychologist Vicki Casterline, Ph.D., reviewed the medical
evidence and completed a mental residual functional capacity on behalf of the state
agency. (PageID# 1256-73). She indicated that her opinion was based upon the previous
consultative psychological examinations and the medical evidence of record regarding
Plaintiff’s March 2007 hospitalization. (PageID# 1258). She also found that Plaintiff
had mild limitations in activities of daily living; mild restrictions with social functioning;
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moderate difficulties maintaining concentration, persistence, or pace; and no episodes of
decompensation. (PageID# 1270). Dr. Casterline opined that Plaintiff “does not appear
to be more than mildly limited in ability to relate to others, maintain concentration and
follow directions. Coping with stress and pressure is moderately limited. Claimant is
capable of performing tasks in a relatively static work environment without strict
production quotas.” (PageID# 1258).
J. Scott Fraser, Ph.D., noted on May 30, 2009, that he saw Plaintiff biweekly for
therapy sessions, and that, of 20 functional areas, Plaintiff had no limitations in 15
categories, slight limitations in her ability to complete normal workday or workweek
without interruptions, and moderate limitations using public transportation. (PageID##
1587-88). Dr. Fraser opined that he had no basis to judge her abilities in three other
areas, but she was employable. (PageID# 1587-88).
C.
Vocational Expert Testimony
In addition to Plaintiff, a vocational expert (VE) testified at the administrative
hearing. The VE classified Plaintiff’s past work as a home health aide (medium, semiskilled); customer service clerk (sedentary, skilled); and a telephone sales representative
(sedentary, semi-skilled). (PageID# 844).
The VE was asked to consider an individual with the same approximate age,
education, and work experience as Plaintiff, who is restricted to light work with the
following limitations: no climbing of ropes, ladders or scaffolds; no balancing; occasional
stooping; no work on uneven surfaces; no more than simple one or two-step tasks
12
required; no more than little concentration required; no exposure to hazards, such as
dangerous machinery, unprotected heights, and “things of that nature.” (PageID# 845).
With those restrictions, the VE testified that such a hypothetical worker could
perform 35,000 jobs at the light level, such as an office helper and a photocopy machine
operator. (Id.). If the same restrictions applied, but the jobs were sedentary, the ALJ
testified there would be at least 8,000 jobs available, such as a type copy examiner and an
addressor.
If an additional limitation requiring Plaintiff be provided with an opportunity to
alternate between sitting and standing as needed was included, the VE testified the
number of light jobs available would be reduced to about 20,000. (PageID# 846). The
VE did not believe this limitation would reduce the number of sedentary positions
available.
Regarding Plaintiff’s limited peripheral vision, the VE testified as follows:
ALJ: If we add a limitation of no peripheral vision to the left and again, keeping
in mind that the claimant is right handed, can you factor that in and tell me
what effect, if any, it would have on the light or sedentary jobs?
VE:
You Honor, I tried to pull up some of that information in the DOT. The
DOT talks about field of vision. And I can read what that is to you. . . .
Field of vision is described as observing an area that can be seen up and
down or to the left and right when eyes are fixed on a given point. This
factor is important when job performance requires seeing a large area while
keeping the eye fixed. So with that description, Your Honor, it doesn’t
appear that any of the jobs I have, have got a large area or requires seeing a
large area while keeping the eye fixed. So I do believe we are – most of the
work is pretty much done in front of the person. I don’t believe there’d be a
change in the numbers or examples..
13
(PageID# 847). The VE also was asked to consider an additional limitation requiring the
use of a cane to ambulate. If such a requirement was present, the VE testified the number
of remaining light jobs would be reduced to approximately 8,000. (Id.). The VE did not
believe there would be an additional reduction in the number of sedentary jobs, however.
(Id.).
The ALJ also asked the VE to consider a requirement limiting lifting to no more
than 10 pounds. (Id.). The VE testified that such an additional restriction would reduce
the number of jobs at the light level down to 5,000, and would have no impact on the
number of jobs at the sedentary level. (Id.). If an additional limitation was added
requiring low stress jobs, defined as no production quotas and no fast paced work, the VE
testified there would be no additional reduction in the number of light jobs, but the
number of jobs at the sedentary level would be further reduced to 4,000.
The ALJ provided an additional limitation, requiring no exposure to the general
public. With this restriction, the VE testified the number of light jobs available would not
be reduced, however, the number of sedentary positions would be further reduced to
approximately 2,500. (PageID# 848).
Upon cross-examination by Plaintiff’s counsel, the VE was asked to consider a
hypothetical worker who “had to take an inordinate amount of time to complete a task,”
and to consider if that would “lead to eventual disciplinary action against that employee.”
(PageID# 852).
14
The VE testified that, if a person consistently is not able to complete the essential
functions of the job in a timely matter, or within an eight-hour day (or whatever the day
is), then this would lead to disciplinary action against the employee. (Id.).
In his closing argument, Plaintiff’s counsel asked – due to the complexity of the
visual field problem – for additional time to submit evidence regarding the issue. In
response, the ALJ stated:
Why don’t I hold the record open for 15 days – to offer that – give me any more
medical expert you – or any more evidence you have and I will in turn perhaps
either set a further hearing with a medical expert here to testify – or at least have a
medical expert or ophthalmological expert review all the evidence and testify, you
know, form interrogatories or in some way. And address that issue of whether the
listing is met or equaled.
(PageID# 857).
III.
Administrative Review
A.
“Disability” Defined
To be eligible for SSI or DIB a claimant must be under a “disability” within the
definition of the Social Security Act. See 42 U.S.C. §§ 423(a), (d), 1382c(a). The
definition of the term “disability” is essentially the same for both DIB and SSI. See
Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory
meaning, a “disability” includes only physical or mental impairments that are both
“medically determinable” and severe enough to prevent the applicant from (1) performing
his or her past job and (2) engaging in “substantial gainful activity” that is available in the
regional or national economies. See Bowen, 476 U.S. at 469-70 (1986).
15
A DIB/SSI applicant bears the ultimate burden of establishing that he or she is
under a disability. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997); see Wyatt v.
Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992); see also Hephner v.
Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
B.
ALJ McNichol’s Decision
ALJ McNichols resolved Plaintiff’s disability claim by using the five-Step
sequential evaluation procedure required by Social Security Regulations. See PageID##
776-93; see also 20 C.F.R. § 404.1520(a)(4). His pertinent findings began at Step 2 of
the sequential evaluation where he concluded that Plaintiff had the following severe
impairments: chronic low back pain; status-post discectomy and fusion procedures;
peripheral vision loss on the left; status-post stroke-like episodes; depression; and anxiety.
(PageID# 778).
The ALJ concluded at Step 3 that Plaintiff did not have an impairment or
combination of impairments that met or equaled the criteria in the Commissioner’s
Listing of Impairments. (PageID# 781).
At Step 4, the ALJ concluded that Plaintiff retained the residual functional
capacity (RFC) to perform sedentary work, except that she can lift no more than 10
pounds at a time; needs an opportunity to alternate positions between sitting and standing
as needed throughout the workday; requires the use of a cane to ambulate; is unable to
work on uneven surfaces; has no peripheral vision on the left; can never balance or climb
ladders, ropes, or scaffolds; can only occasionally stoop; can tolerate no exposure to
16
hazards, such as dangerous machinery and unprotected heights; must involve no more
than simple, one- or two-step tasks (requiring little, if any, concentration); no exposure to
the general public; work must be low stress, defined as no production quotas and no fastpaced production work. (PageID# 782).
The ALJ concluded at Step 4 that Plaintiff is unable to perform her past relevant
work. (PageID# 791). At Step 5, the ALJ concluded that Plaintiff could perform a
significant number of jobs in the national economy. (PageID# 792).
The ALJ’s findings throughout his sequential evaluation led him to ultimately
conclude that Plaintiff was not under a disability and was therefore not eligible for DIB or
SSI. (PageID# 793).
IV.
Judicial Review
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ
applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009); see Bowen v. Comm’r of Soc. Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999). Instead, the ALJ’s factual findings are upheld if the substantial evidence
standard is met – that is, “if a ‘reasonable mind might accept the relevant evidence as
17
adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r
of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at
241.
The second line of judicial inquiry – reviewing for correctness the ALJ’s legal
criteria – may result in reversal even if the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
V.
Discussion
A.
The Plaintiff’s Contentions
Plaintiff raises the following five arguments: 1) the ALJ erred in the assessment of
her lumbar pathology when he found that her medical condition was consistent with fulltime sedentary work; 2) the ALJ relied upon improper vocational testimony to assess her
visual field loss and therefore erred in the creation of his hypothetical question; 3) the
ALJ erred in his assessment that her mental condition improved over time in a manner
that allowed for sustained gainful employment; 4) the ALJ’s treatment of the opinion of
18
psychiatrist Julie P. Gentre, M.D., was inconsistent with the Commissioner’s rules and
her findings were afforded inappropriate weight under the Commissioner’s Regulations;
and 5) the ALJ relied upon evidence which existed before her amended onset date in
order to form his opinions regarding medical severity, credibility, and residual functional
capacity, and the inclusion of evidence before the amended onset date was inappropriate
and deprived the claimant of a fair hearing. (PageID# 1710).
The Commissioner contends that substantial evidence supports the ALJ’s residual
functional capacity finding with respect to Plaintiff’s physical impairments; the ALJ
reasonably relied on the vocational expert’s testimony; the ALJ evaluated Plaintiff’s
mental impairments appropriately and properly discounted Dr. Gentre’s assessment; the
ALJ did not have to give any special consideration to GAF scores; Plaintiff was
unharmed by discussion of evidence prior to her amended onset date; and the
Commissioner’s decision should be affirmed. (PageID# 1755).
B.
Medical Source Opinions
1.
Treating Medical Sources
The treating physician rule, when applicable, requires the ALJ to place controlling
weight on a treating physician’s or treating psychologist’s opinion rather than favoring
the opinion of a nonexamining medical advisor or a one-time examining physician or
psychologist or a medical advisor who testified before the ALJ. Blakley, 581 F.3d at 406
(6th Cir. 2009); see Wilson, 378 F.3d at 544 (6th Cir. 2004). A treating physician’s opinion
19
is given controlling weight only if it is both well supported by medically acceptable data
and if it is not inconsistent with other substantial evidence of record. (Id.).
“If the ALJ does not accord controlling weight to a treating physician, the ALJ
must still determine how much weight is appropriate by considering a number of factors,
including the length of the treatment relationship and the frequency of the examination,
the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any specialization of the
treating physician.” Blakley, 581 F.3d at 406 (citing Wilson, 378 F.3d at 544).
More weight is generally given to the opinions of examining medical sources than
is given to the opinions of non-examining medical sources. See 20 C.F.R. §
404.1527(c)(1)5. Yet the opinions of non-examining state agency medical consultants
have some value and can, under some circumstances, be given significant weight. This
occurs because the Commissioner views such medical sources “as highly qualified
physicians and psychologists who are experts in the evaluation of the medical issues in
disability claims under the [Social Security] Act.” Social Security Ruling 96-6p.
Consequently, opinions of one-time examining physicians and record-reviewing
physicians are weighed under the same factors as treating physicians including
supportability, consistency, and specialization. See 20 C.F.R. § 404.927(c), (e); see also
Ruling 96-6p at *2-*3.
5
20 C.F.R. §§ 404.1527 and 416.927 were amended effective March 26, 2012. The provisions
governing the weight to be afforded a medical opinion were previously found at 20 C.F.R. §§
404.1527(d) and 416.927(d).
20
2.
Non-Treating Medical Sources
The Commissioner views non-treating medical sources “as highly qualified
physicians and psychologists who are experts in the evaluation of the medical issues in
disability claims under the [Social Security] Act.” Social Security Ruling 96-6p, 1996
WL 374180 at *2. Yet the Regulations do not permit an ALJ to automatically accept (or
reject) the opinions of a non-treating medical source. See id. at *2-*3. The Regulations
explain, “In deciding whether you are disabled, we will always consider the medical
opinions in your case record together with the rest of the relevant evidence we receive.”
20 C.F.R. § 404.1527(b). To fulfill this promise, the Regulations require ALJs to
evaluate non-treating medical source opinions under the factors set forth in § 404.1527(d)
including, at a minium, the factors of supportability, consistency, and specialization. See
20 C.F.R. § 404.1527(e); see also Ruling 96-6p at *2-*3.
C.
Discussion
1.
Plaintiff contends the ALJ erred in the assessment of her lumbar pathology when
he found that her medical condition was consistent with sedentary full-time work.
(PageID# 1721). Plaintiff argues the ALJ merely “cherry picked” the evidence in order
to reach this conclusion. Plaintiff’s argument lacks merit, however, as the Court finds
that substantial evidence supports the ALJ’s conclusion that Plaintiff could perform a
reduced range of sedentary work.
21
Plaintiff had back surgery in July 2007. Six weeks later, Dr. Minella reported that
Plaintiff “seems to be doing well,” and that “[s]he denies any leg pain or much in the way
of back pain.” (PageID# 1274). In August 2007, she reported she had surgery to Dr.
Harris, and that she only expected a two to three month recovery period. (PageID#
1250). At that time, Plaintiff stated that she was able to go to the grocery with her
mother, and could shop or at least walk around the store. (Id.). She also reported that her
“ambulation is better now than before the surgery,” although she did still report she
suffered from sciatic pain. (Id.). A few months later, state agency reviewing physician
Dr. Klyop reviewed the medical evidence and concluded that Plaintiff could still perform
a reduced range of light work. (PageID# 1277). Upon examination by Carlos Jordan,
M.D., in September 2008, it was reported that Plaintiff “is almost pain free.” (PageID#
1409). Dr. Jordan also recommended that “[s]ince pain is not as severe, I told her that she
could use over-the-counter nonsteroidals in order to have some improvement. I
recommend [for] her to take ibuprofen 400 mg p.o. q.4-6 h. p.r.n. for pain and she has
agreed.” (Id.).
In May 2009, it was noted that Plaintiff reported “[b]ilateral upper back stiffness
happening occasionally,” and that she “specifies her upper back discomfort as mild in
intensity.” (PageID# 1583). Dr. Jordan noted that Plaintiff’s health status was
good/stable with treatment. (PageID## 1585-86).
The ALJ accordingly provided significant weight to the opinions of Drs.
Danopulos, Albert, and Klyop, and determined “their assessments are supported by
22
medical signs and findings upon examination and are generally consistent with the
substantial medical evidence of record.” (PageID# 789). The ALJ’s finding with respect
to these opinions is supported by substantial evidence. In addition, despite Plaintiff’s
own reports of “mild” back pain and improvements in back pain, the ALJ nevertheless
gave her the benefit of the doubt, and limited her to a reduced range of sedentary work.
(Id.). Even taking into consideration that the opinions of Drs. Albert and Danopulos were
provided before Plaintiff had her stroke, Dr. Klyop’s assessment, as well as Plaintiff’s
own reports of pain levels, occurred afterwards and provide substantial evidence to
support the ALJ’s conclusion. Moreover, Defendant correctly notes that no doctor
thought Plaintiff’s back impairment was disabling. For these reasons, Plaintiff’s
argument lacks merit.
2.
Plaintiff also contends that the vocational expert’s testimony cannot be the basis
for a decision based on substantial evidence because she offered testimony which
misunderstood the importance of a full visual field upon work, work efficiency, and
safety. (PageID# 1724). Similarly, Plaintiff also argues that the ALJ failed to explain
how his RFC accommodated safety hazards in the work environment, in relation to
Plaintiff’s vision issues.
Plaintiff’s visual acuity test, performed in October 2008, showed peripheral vision
of 90 degrees on the right, but only 5 to 10 degrees on the left (visual field of 95 to 100
degrees). (PageID# 1337). As such, the ALJ provided a limitation in his hypothetical
23
for the VE to “add a limitation of no peripheral vision to the left,” as well as “keep in
mind that [Plaintiff] is right handed.” (PageID# 847). The VE turned to the Dictionary
of Occupational Titles for guidance on “field of vision,” and informed the ALJ that the
DOT describes a field of vision “as observing an area that can be seen up and down or to
the left and right when eyes are fixed on a given point,” and that “[t]his factor is
important when job performance requires seeing a large area while keeping the eye
fixed.” (Id.). The VE then stated that “with that description . . . it doesn’t appear that any
of the jobs I have, have got a large area or requires seeing a large area while keeping the
eye fixed. So I do believe we are – most of the work is pretty much done in front of the
person. I don’t believe there’d be a change in the numbers or examples.” (Id.).
Plaintiff argues that because the visual field can be disabling if an individual
cannot avoid ordinary hazards in the workplace, the ALJ should have also explained
“how his presentation of the hypothetical embraced the unique visual field losses that the
[she] had.” (PageID# 1762). Plaintiff contends that her “testimony described in great
detail that she had difficulty seeing things on the floor as well as experiencing a constant
fear about hazards around her.” (PageID# 1762)(citing PageID# 840). Plaintiff’s
argument lacks merit.
The ALJ properly incorporated Plaintiff’s diminished left peripheral vision by
instructing the VE to add such a limitation in the hypothetical he provided to her. The VE
relied upon the DOT regarding the definition of “field of vision,” and considering such
definition, concluded that the number of available jobs would not be diminished. This
24
hypothetical accurately portrays Plaintiff’s limited peripheral vision, and thus, the VE’s
testimony provides substantial evidence for the ALJ’s finding. See Varley v. Sec’y of
Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987) (“Substantial evidence may be
produced through reliance on the testimony of a vocational expert (VE) in response to a
‘hypothetical’ question, but only ‘if the question accurately portrays [the claimant’s]
individual physical and mental impairments.”).
Plaintiff believes, due to her left peripheral vision issues, the ALJ should have also
added a restriction, or specifically addressed, how ordinary hazards (i.e., boxes on the
floor, doors ajar, approaching people or vehicles) might limit her ability to perform
sedentary jobs. Yet, aside from her own testimony, the record does not otherwise support
finding that Plaintiff cannot avoid ordinary hazards. The ALJ therefore was not required
to include an additional restriction to address such a complaint. See Stanley v. Sec’y of
Health & Human Servs., 39 F.3d 115, 118-19 (6th Cir. 1994) (“[T]he ALJ is not obliged to
incorporate unsubstantiated complaints into his hypotheticals.”). Moreover, to the extent
Plaintiff relies on her cane to walk, the ALJ specifically took this fact into consideration
in his hypothetical when he asked the VE to “add a limitation of use of a cane to
ambulate.” (PageID# 847). The ALJ added this limitation despite the fact that he also
noted numerous inconsistencies with statements Plaintiff has made regarding her ability
to walk. For example, Plaintiff reported using her cane “all the time,” but her sister stated
in June 2007 that Plaintiff was not using a cane or walker (PageID# 968); Plaintiff’s
occupational therapist reported in October 2008 that Plaintiff walked without assistive
25
devices (PageID# 1337); and Plaintiff informed Dr. Klyop in August 2007 that she goes
out to lunch and grocery shopping with her mother (and is able to walk around the store)
(PageID# 1250). There is also no opinion from a physician that she would require any
visual limitations or that her limited peripheral vision on the left would be disabling
because she is unable to avoid ordinary hazards.
As the Court finds the ALJ’s hypothetical accurately portrays Plaintiff’s peripheral
vision impairment, his reliance upon the VE’s testimony provides substantial evidence to
support his finding that Plaintiff could perform jobs in significant numbers in the national
economy and is therefore not disabled. Thus, Plaintiff’s argument lacks merit.
3.
Plaintiff next argues that the ALJ erred in finding that Plaintiff’s mental condition
improved over time in a manner that permitted sustained gainful employment. (PageID#
1724). Plaintiff noted that her GAF score was 52 on April 2, April 25, July 18, and
August 15, 2008, and was 50 on January 3, June 20, July 6, and September 29, 2009, and
January 13, 2010. (PageID## 1724-25). Plaintiff contends that “[o]nly the individuals
who are providing active care and treatment for [her] are in a position to be awarded a
higher level of reliability with regard to GAF scores.” (PageID# 1725). Plaintiff also
contends that her anxiety significantly increased after her stroke and that reliance upon
higher scores prior to her stroke was improper.
Defendant contends that Plaintiff’s argument is unpersuasive because her GAF
scores over time were consistent. Defendant contends that Plaintiff was mostly assigned
26
a score of 52, which indicates only moderate symptoms and limitations, and is consistent
with the ALJ’s determination that Plaintiff was not disabled. (PageID# 1752).
Defendant also contends that the scores were assigned by social workers and counselors
who are not doctors, and are not considered acceptable medical sources by Agency
regulations. (Id.).
The Court finds that Plaintiff’s argument lacks merit. Plaintiff appears to believe
the ALJ should have treated her GAF scores as a substitute for medical opinions from
acceptable medical sources. Yet, there is nothing to suggest there exists “any statutory,
regulatory, or other authority requiring the ALJ to put stock in a GAF score in the first
place.” Kornecky, 167 Fed. Appx. at 511. Moreover, a GAF score is merely “a subjective
determination that represents the clinician’s judgment of the individual’s overall level of
function.” White v. Comm’r of Soc. Sec., 572 F.3d 272, 276 (6th Cir. 2009) (internal
quotation marks and citation omitted). “A GAF score is thus not dispositive of anything
in and of itself, but rather only significant to the extent that it elucidates an individual’s
underlying mental issues.” Oliver v. Comm’r of Soc. Sec., 415 Fed. Appx. 681, 684 (6th
Cir. 2011)(citations omitted). In addition, the counselors and social workers who
provided the GAF scores did not submit an assessment regarding Plaintiff’s functional
limitations. Accordingly, the ALJ was not required to assign any weight to their
treatment notes or GAF scores.
4.
27
Plaintiff further argues that the ALJ’s treatment of the opinion of psychiatrist Julie
P. Gentre, M.D., was inconsistent with the Commissioner’s rules and that her findings
were afforded inappropriate weight under the Commissioner’s Regulations. (PageID#
1725). Plaintiff contends that the ALJ erred by not considering Dr. Gentre as a “treating
source” because she only treated her for one month prior to completing the assessment.
(PageID# 1725). According to Plaintiff, Dr. Gentre should be considered a treating
psychiatrist because she treated with her on August 23, October 11, November 1, and
December 20, 2007, as well as January 17, 2008. (Id.). Plaintiff argues Dr. Gentre’s
opinion should be provided significant weight because it is consistent and because she
was the first provider to treat Plaintiff after her stroke. (PageID# 1726).
Defendant contends that the ALJ gave “good reasons” for discounting the two
work assessment forms completed by Dr. Gentre. (PageID# 1747). Defendant argues
that the ALJ properly presumed that Dr. Gentre only saw Plaintiff a few times before
completing her June 2007 assessment, and thus, she could not be considered a treating
physician, regardless of whether Plaintiff saw her on more occasions after the assessment
form was completed. (PageID# 1748).
Upon review of the record, the Court finds the ALJ did not err in determining that
Dr. Gentre was not a treating physician. To qualify as a treating source, a physician must
have an “ongoing treatment relationship” with the claimant. 20 C.F.R. § 404.1502.
Whether an ongoing treatment relationship exists is determined at the time the physician’s
opinion is rendered. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 506 (6th Cir.
28
2006) (“[T]he relevant inquiry is . . . whether [claimant] had the ongoing relationship with
[the physician] at the time he rendered his opinion. [V]isits to [the physician] after his
RFC assessment could not retroactively render him a treating physician at the time of the
assessment.”). At the time Dr. Gentre rendered her opinion, in June 2007, Plaintiff had,
at most, only had two or three visits with her. The Sixth Circuit has declined to find that
an ongoing treatment relationship exists after just two or three examinations. See, e.g.,
Boucher v. Apfel, 2000 U.S. App. LEXIS (6th Cir. 2000); Yamin v. Comm’r of Soc. Sec.,
67 F. App’x 883, 885 (6th Cir. 2003); and Helm v. Comm’r of Soc. Sec., 405 Fed. Appx.
997, at *3 n.3 (6th Cir. 2011).
Plaintiff’s argument is also unpersuasive because, even if the ALJ erred in finding
Dr. Gentre was not a “treating” source, he nevertheless provided an alternative analysis,
in which he did consider Dr. Gentre as a treating source, yet nonetheless provided her
opinion little weight as he determined her opinion was “inconsistent with the relatively
normal findings upon mental status examinations in the record.” (PageID# 790). This
finding is also supported by substantial evidence. Plaintiff’s argument therefore lacks
merit.
5.
Plaintiff also challenges the ALJ’s ability to consider medical evidence prior to her
amended onset date in March 2007. Plaintiff contends that because the stroke she had
worsened her anxiety and caused her to have a diminished visual field, as well as
29
dizziness and back pain, it was improper for the ALJ to consider any medical evidence
prior to this time period. (PageID# 1727).
Plaintiff’s contentions would have merit if the ALJ only considered evidence prior
to her stroke (and amended onset date of disability), however, that is not the case. The
ALJ considered evidence from before, as well as after, Plaintiff’s stroke. Moreover,
despite Plaintiff’s argument otherwise, the ALJ did not improperly use the evidence he
considered prior to Plaintiff’s stroke to “give[] the false impression that [Plaintiff’s]
capabilities are greater than they are.” (PageID# 1727). The ALJ provided accurate
dates for the records he cited to (from before and after the stroke in 2007) and on many
occasions even specifically noted that the exhibit being discussed was from prior to the
amended alleged disability onset date. (See PageID## 778-91). He did not try to
somehow misrepresent the evidence, as Plaintiff contends.
The Court is unaware of, and Plaintiff has not cited to, any rule, regulation, or case
prohibiting an ALJ from considering evidence in the record simply because it is from
prior to an alleged disability onset date. Despite Plaintiff’s contentions otherwise, the
Court does not find the ALJ improperly used such evidence or that it was somehow
“irrelevant.” As the ALJ’s findings are supported by substantial evidence, and for the
reasons stated above, Plaintiff’s argument is without merit.
IT IS THEREFORE RECOMMENDED THAT:
1.
The Commissioner’s non-disability determination be AFFIRMED; and
30
2.
The case be terminated on the docket of this Court.
August 2, 2013
s/ Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen days because this Report is being served by one of
the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party's objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See, United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).
31
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