Skeens v. Commissioner of Social Security

Filing 9

REPORT AND RECOMMENDATIONS - It is recommended that the Commissioner's decision that Plaintiff was not disabled and therefore not entitled to benefits under the Act be affirmed. Objections to R&R due by 11/1/2012. Signed by Magistrate Judge Michael R Merz on 10/15/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

SHERRY SKEENS,

:
Case No. 3:12-cv-40

Plaintiff,
-vs-

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,

Defendant.

:

REPORT AND RECOMMENDATIONS
Plaintiff brought this action pursuant to 42 U.S.C. '405(g) and 42 U.S.C. '1381(c)(3) as it
incorporates '405(g), for judicial review of the final decision of Defendant Commissioner of
Social Security (the "Commissioner") denying Plaintiff's application for Social Security benefits.
The case is now before the Court for decision after briefing by the parties directed to the record as
a whole.
Judicial review of the Commissioner's decision is limited in scope by the statute which
permits judicial review, 42 U.S.C. '405(g). The Court's sole function is to determine whether the
record as a whole contains substantial evidence to support the Commissioner's decision. The
Commissioner's findings must be affirmed if they are supported by "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402
U.S. 389, 401 (1971), citing, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938);
Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986).
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Substantial evidence is more than a mere scintilla, but only so much as would be required to
prevent a directed verdict (now judgment as a matter of law), against the Commissioner if this case
were being tried to a jury. Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988); NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
In deciding whether the Commissioner's findings are supported by substantial evidence,
the Court must consider the record as a whole. Hepner v. Mathews, 574 F.2d 359 (6th Cir.
1978); Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6th Cir. 1984);
Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). However, the Court may not try the case de
novo, resolve conflicts in evidence, or decide questions of credibility. Garner, supra. If the
Commissioner's decision is supported by substantial evidence, it must be affirmed even if the
Court as a trier of fact would have arrived at a different conclusion. Elkins v. Secretary of Health
and Human Services, 658 F.2d 437, 439 (6th Cir. 1981).
To qualify for disability insurance benefits (SSD), a claimant must meet certain insured
status requirements, be under age sixty-five, file an application for such benefits, and be under a
disability as defined in the Social Security Act, 42 U.S.C. ' 423. To establish disability, a claimant
must prove that he or she suffers from a medically determinable physical or mental impairment
that can be expected to result in death or has lasted or can be expected to last for a continuous
period of not less than twelve months. 42 U.S.C. '423(d)(1)(A). Secondly, these impairments
must render the claimant unable to engage in the claimant's previous work or in any other
substantial gainful employment which exists in the national economy. 42 U.S.C. '423(d)(2).
To qualify for supplemental security benefits (SSI), a claimant must file an application and
be an "eligible individual" as defined in the Social Security Act. 42 U.S.C. '1381a. With
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respect to the present case, eligibility is dependent upon disability, income, and other financial
resources. 42 U.S.C. '1382(a). To establish disability, a claimant must show that the claimant is
suffering from a medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. '1382c(a)(A). A claimant must also show that the impairment
precludes performance of the claimant's former job or any other substantial gainful work which
exists in the national economy in significant numbers. 42 U.S.C. '1382c(a)(3)(B). Regardless
of the actual or alleged onset of disability, an SSI claimant is not entitled to SSI benefits prior to the
date that the claimant files an SSI application. See, 20 C.F.R. ' 416.335.
Plaintiff filed applications for SSD and SSI in January, 2005, which the Commissioner
denied at the initial and reconsideration levels. See Tr. 47. Administrative Law Judge Thaddeus
Armstead held a hearing and on June 11, 2008, he determined that Plaintiff was not disabled, Tr.
47-57, and Plaintiff took no further appeal.
Plaintiff filed an application for SSD on June 12, 2008, and for SSI on August 15, 2008,
alleging disability from June 11, 2008, due to spondylosis of the lower cervical spine, hypertrophic
spurs, depression, and colon problems. Tr. 83; 595;102. On August 22, 2008, the Commissioner
denied Plaintiff’s application for SSD on the basis that she lacked insured status. Tr. 58-60.
Subsequently, the Commissioner determined that Plaintiff met the insured status requirement of
the Act through December 31, 2009, and therefore elevated Plaintiff’s SSD application to the
hearing level. Administrative Law Judge Carol Bowen held a hearing, Tr. 672-96, following which
she determined Plaintiff is not disabled. Tr. 17-34. The Appeals Council denied Plaintiff’s request

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for review, Tr. 6-9, and Judge Bowen’s decision became the Commissioner’s final decision. See
Kyle v. Commissioner of Social Security, 609 F.3d 847, 854 (6th Cir. 2010).
In determining that Plaintiff is not disabled, Judge Bowen found that Plaintiff has severe
lumbar and cervical degenerative disc disease with residuals of cervical spinal fusion, major
depression, recurrent without psychotic features, an anxiety disorder with post-traumatic stress
disorder symptoms, and panic disorder without agoraphobia, but that that she does not have an
impairment or combination of impairments that meets or equals the Listings. Tr. 23, ¶ 3; Tr. 24, ¶
4. Judge Bowen found further that Plaintiff has the residual functional capacity to perform a
limited range of light work. Tr. 27, ¶ 5. Judge Bowen then used section 202.21 of the Grid as a
framework for deciding, coupled with a vocational expert’s (VE) testimony concluded that there is
a significant number of jobs Plaintiff is capable of performing. Tr. 32, ¶ 10. Judge Bowen
concluded that Plaintiff is not disabled and therefore not entitled to benefits under the Act. Tr. 33.
Plaintiff underwent an anterior cervical discectomy with decompression and interbody
fusion and plating in May, 2005, which neurosurgeon Dr. Taha performed. Tr. 180-81.
Examining psychologist Dr. Wuebker reported on August 24, 2005, that, based on his
examination, Plaintiff’s diagnoses were major depression and panic disorder without agoraphobia
and he assigned her a GAF of 50. See Tr. 50-51.
On January 5, 2006, Plaintiff consulted with Dr. Taha for complaints of back pain. Tr.
179. Dr. Taha reported that Plaintiff was intoxicated when she arrived for the diskogram which
was rescheduled, that the diskogram was negative, and that there was an issue about Plaintiff’s use
of pain medication. Id. Dr. Taha recommended that Plaintiff not have surgery. Id.
An MRI of Plaintiff’s lumbar spine performed on June 18, 2007, revealed mild

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degenerative changes and mild narrowing of the central canal at L3-4 and L4-5 due to mild central
disc protrusion. Tr. 195.
Dr. Taha reported on August 2, 2007, that he had reviewed Plaintiff’s recent MRI and he
recommended that Plaintiff not have surgery. Tr. 176. Dr. Taha did recommend that Plaintiff lose
weight and engage in exercise. Id.
Plaintiff underwent a sleep study on May 31, 2006, which disclosed periodic limb
movement with mild sleep apnea and obstructive sleep apnea syndrome. Tr. 168.
The record contains treating physician Dr. Zaraby’s office notes dated January 29, 2007,
through June 16, 2008, and which reveal that Dr. Zaraby treated Plaintiff for various medical
conditions including lumbosacral disc disease, chronic back pain, chronic neck pain, and gastritis.
Tr. 214-72. On September 19, 2008, Dr. Zaraby reported that Plaintiff had undergone neck surgery
in the past without complete resolution of her symptoms, that she would likely need surgical
intervention for her lower disc disease, medications controlled her pain, and that her ability to lift
heavy materials was limited. Id.
Dr. Zaraby referred Plaintiff to psychologist Dr. Smith who reported on October 29, 2007,
that Plaintiff graduated from high school, had taken some college courses, cried almost every day,
had a sad mood, and that she had no psychiatric treatment in the past. Id. Dr. Smith also reported
that Plaintiff had problems with concentration and memory, her affect was blunted, she rarely
made eye contact, and that she denied using illicit drugs, tobacco, and/or alcohol. Id. Dr. Smith
identified Plaintiff’s diagnosis as major depressive disorder, single episode, severe, and he
recommended antidepressant medication and counseling. Id.
On May 11, 2008, Plaintiff sought emergency room treatment for complaints of right

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flank pain, the health care provider identified Plaintiff’s diagnoses as enterocolitis and urinary
tract infection. Tr. 333. Plaintiff underwent a CT scan of her abdomen which revealed, inter alia,
some thickening of the small bowel looped wall. Id. Plaintiff was treated and released. Id.
Plaintiff consulted with gastroenterologist Dr. Gootzeit in June, 2008, at which time she
reported that recent CT scan revealed thickening of the small bowel wall, and that she had
abdominal pain and was losing weight. Tr. 313. Plaintiff subsequently underwent an EGD and
colonoscopy which Dr. Gootzeit performed and which revealed atrophic gastritis, a small hiatal
hernia, esophagitis, and duodenitis. Tr. 279-80; 281-83. On August 21, 2008, Dr. Gootzeit noted
that Plaintiff had reported her appetite was improved and that she had no more abdominal pain. Tr.
277.
On October 9, 2008, Plaintiff sought emergency room treatment after reportedly being
assaulted by her husband. Tr. 477-81. A CT of Plaintiff’s facial bones and head revealed multiple
facial fractures. Id. Plaintiff’s health care provider noted the slight odor of alcohol on Plaintiff’s
breath and identified her diagnosis as multiple nasal fractures with left maxillary sinus
involvement secondary to an alleged assault and she was treated and released. Id.
An October 16, 2008, pelvic ultrasound revealed multiple fibroids and right ovarian cysts.
Tr. 414.
Examining psychologist Dr. Boerger reported on October 27, 2008, that Plaintiff has had
some mental health treatment, it was recommended that she take an antidepressant, she graduated
from high school, she stated she does not drink alcohol, and that she denied having a problem with
abuse of alcohol or any other drugs. Tr. 367-72. Dr. Boerger also reported that Plaintiff’s speech
and thought processes were normal, her affect was appropriate, she alleged having trouble with

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anxiety, she was alert and oriented, and that she alleged having trouble with her memory. Id. Dr.
Boerger identified Plaintiff’s diagnoses as major depressive disorder, single episode, moderate,
and generalized anxiety disorder and he assigned her a GAF of 50. Id. Dr. Boerger opined that
Plaintiff’s abilities to relate to others and to understand and follow instructions were moderately
impaired, her ability to maintain attention to perform simple repetitive tasks was mildly impaired,
and her ability to withstand the stress and pressures associated with day-to-day work activity was
markedly impaired. Id.
On November 24, 2008, in an addendum to his report, Dr. Boerger opined that Plaintiff’s
ability to withstand the stress and pressures associated with day-to-day work activity was
moderately impaired as a result of her depression and anxiety. Tr. 393.
Plaintiff sought emergency room treatment for complaints of abdominal and/or pelvic pain
on April 29, August 1, August 5, and October 18, 2009. See Tr. 482-83; 499; 503; 558. On those
occasions, Plaintiff was treated and released. Id.
Plaintiff was hospitalized on an out-patient basis December 3, 2008, at which time she
underwent a diagnostic hysteroscopy and dilatation and curettage. Tr. 403-05. Plaintiff’s diagnosis
was identified as menometorrhagia and multiple uterine fibroids. Id. In July, 2009, Plaintiff
underwent a total abdominal hysterectomy. Tr. 490-97.
A lumbar spine MRI performed on November 24, 2009, revealed disc disease in the lower
three lumbar levels, greatest at L3-4 and L4-5 with more right-sided neural encroachment. Tr.
516-17.
The record contains a copy of Plaintiff’s treatment notes from Shelby County Counseling
dated September 30, 2009, through May 5, 2010. Tr. 531-52. Those notes reveal that when

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Plaintiff was first evaluated by counselor Emma Hecht, she was depressed and anxious and her
diagnosis was identified as major depressive disorder, single episode. Id. Those records also reveal
that Plaintiff failed to show for appointments with her counselor or cancelled appointments on
September 10, October 20, and December 10, 2009, as well as on March 2, April 28, and May 4,
2010. Id.
On December 14, 2009, Plaintiff sought emergency room treatment for nasal pain and
swelling. Tr. 556-57. Plaintiff’s diagnosis was identified as nasal soft tissue infection and she was
treated and released. Id.
Plaintiff sought emergency room treatment on May 10, 2010, for left ankle pain. Tr.
553-55. Plaintiff’ diagnosis was identified as a grade I ankle sprain with a minor ankle avulsion
and she was treated and released. Id.
In June, 2010, Plaintiff again sought mental health treatment at Shelby County Counseling.
Tr. 566-79. At the time Plaintiff was initially evaluated by counselor Emma Hecht it was noted that
Plaintiff was seeking treatment for depression, wanted training for a job that she was able to
perform, had several grief issues, her diagnoses were major depression single episode and PTSD,
and that her GAF was 40. Id. Although Plaintiff met with her counselor on July 6, 2010, on July 20,
2010, she did not show for her appointment or call her counselor. Id.
Plaintiff alleges in her Statement of Errors that the Commissioner erred by failing to give
the proper evidentiary weight to the opinion of Emma Hecht, her mental health counselor, by
failing to properly evaluate her credibility, and by failing to properly apply Drummond v.
Commissioner of Social Security, 126, F.3d 837 (6th Cir. 1997).
Since a resolution of the Drummond issue would arguably affect the ultimate disposition of

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this matter, the Court will address Plaintiff’s Drummond argument first.
The thrust of Plaintiff=s argument is that the Commissioner failed to abide by Drummond,
supra, and Acquiescence Ruling (AR) 98-4(6), 1998 WL 283902 (June 1, 1998), which essentially
provide that absent evidence of an improvement in a claimant=s condition, a subsequent ALJ is
bound by the residual functional capacity finding of a previous ALJ. Plaintiff=s position is that
Judge Bowen was bound by Judge Armstead’s previous determination as to her mental residual
functional capacity. However, Plaintiff points only to the fact that Judge Bowen determined that
she (Plaintiff) has an additional severe mental impairment, to wit: anxiety disorder with
post-traumatic stress disorder symptoms. PageID 59. Plaintiff does not point to any specific
functional limitations that have changed since Judge Armstead’s decision. Rather, her argument is
that the presence of an additional diagnosis indicates that “there has been a change in the nature of
[her] mental impairments.” PageID 60.
Of course, the presence of a diagnosis alone is never conclusive evidence of disability.
See, Young v. Secretary of Department of Health and Human Services, 925 F.2d 146 (6th Cir.
1990). The mere diagnosis of an impairment does not indicate the severity of the condition nor the
limitations, if any, that it imposes. Id.
As noted above, Plaintiff’s treatment records from Ms. Hecht dated September 30, 2009,
through May 4, 2010, the time period between Judges Armstead’s and Bowen’s decisions, reveal
that Plaintiff frequently either did not show for her scheduled counseling appointments or
cancelled her appointments. The fact that Plaintiff missed numerous counseling sessions indicates
that she received only periodic counseling from Ms. Hecht. In addition, those records indicate that
Plaintiff did not receive a referral to a psychiatrist for treatment or even medications. In addition,
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subsequent to Judge Armstead’s decision, examining psychologist Dr. Boerger reported, that
Plaintiff is, at worst, moderately impaired in her abilities to function. That is consistent with Judge
Armstead’s earlier findings. See Tr. 53. Finally, the opinion of the reviewing mental health expert
who offered his opinion after Judge Armstead issued his decision is also consistent with Judge
Armstead’s earlier findings. Compare Tr. 374-91, with, Tr. 53.
Under these facts, this Court concludes that the Commissioner did not err by failing to
properly apply Drummond, supra, and AR 98-4(6).
Plaintiff also argues that the Commissioner erred by failing to give the proper evidentiary
weight to the opinion of her counselor, Ms. Hecht.
First, Plaintiff acknowledges that Ms. Hecht is not an “acceptable medical source”. PageID
54-55. Nevertheless, Plaintiff’s position is that a mental health counselor’s opinion is entitled to
consideration due to the counselor’s expertise and nature of the counselor’s relationship with her
client. Relying on Cole v. Astrue, 661 F.3d 931, 939 n. 4 (2011), Plaintiff points out the importance
of addressing the opinion of a mental health counselor as a valid “other source”. PageID 55.
A review of Judge Bowen’s decision reveals that, after noting that Ms. Hecht is not an
acceptable source, Judge Bowen considered her findings and rejected them on the basis that they
were inconsistent with other evidence in the record. Tr. 29; 31. Specifically, Judge Bowen
determined that Ms. Hecht’s findings were not entitled to great, if any weight, because the record
reveals that Plaintiff had received, at best, sporadic treatment which, the Court notes, is reflected
by Plaintiff’s frequent appointment “no-shows” and cancellations. Further, as noted, Plaintiff was
never referred for psychiatric and/or medical intervention. In addition, Judge Bowen determined
that Ms. Hecht’s opinion is inconsistent with the other mental health evidence in the record. As

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noted above, Dr. Buerger opined that Plaintiff is, at worst, moderately limited in her abilities to
perform work-related functions. Finally, as Judge Bowen noted, Ms. Hecht’s opinion is
inconsistent with the reviewing psychologist’s opinion.
Under these facts, this Court concludes that the Commissioner did not err in his evaluation
of and ultimate rejection of Ms. Hecht’s findings and conclusions.
Plaintiff also argues that the Commissioner erred in evaluating her credibility.
It is, of course, for the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant. Rogers v. Commissioner of Social Security, 486 F.3d
234, 247 (6th Cir. 2007)(citations omitted). An administrative law judge=s credibility findings are
entitled to considerable deference and should not be lightly discarded.

See, Villarreal v.

Secretary of Health and Human Services, 818 F.2d 461 (6th Cir. 1987); Casey v. Secretary of
Health and Human Services, 987 F.2d 1230 (6th Cir. 1993). Determination of credibility related to
subjective complaints rests with the ALJ and the ALJ=s opportunity to observe the demeanor of the
claimant is invaluable and should not be discarded lightly. Gaffney v. Bowen, 825 F.2d 98 (6th Cir.
1987).
In determining that Plaintiff was not entirely credible, Judge Bowen noted that the record
contained inconsistencies related to Plaintiff’s self-reports, reflected that an emergency room
physician suspected that Plaintiff was engaging in drug-seeking behavior, revealed that Plaintiff
has generally received only conservative treatment, and that the medical evidence did not support
Plaintiff’s allegations. Tr. 30-31.
A review of the record indicates that Judge Bowen’s analysis of Plaintiff’s credibility is
supported by substantial evidence. For example, although Plaintiff reported that she was
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hospitalized for two weeks after her husband beat her, (Tr. 547), treatment records from that
incident reveal that Plaintiff was treated and released from the emergency room the same night that
the incident occurred. Tr. 477-78. In addition, although Plaintiff reported at one time that she
sustained the facial injuries when her husband beat her, (Tr. 547), at another time, she reported that
she sustained the facial injuries when she was in an automobile accident. Tr. 491. Moreover,
Plaintiff reported that she had not undergone lumbar spine surgery because her treating
neurosurgeon, Dr. Taha, had advised her that it would be more harmful than helpful. Tr. 648;
678-79. However, a review of Dr. Taha’s notes do not support Plaintiff’s allegation. Tr. 172-213.
The record also supports Judge Bowen’s determination that at least one physician
suggested that Plaintiff engaged in drug-seeking behavior. Tr. 483. Further, as noted above,
Plaintiff’s mental health treatment was sporadic primarily because she either cancelled
appointments or simply did not show for scheduled appointments.
Under these facts, this Court concludes that the Commissioner had an adequate basis for
finding that Plaintiff was not entirely credible. Therefore, the Commissioner did not error in this
regard.
The Court=s duty on appeal is not to re-weigh the evidence, but to determine whether the
decision below is supported by substantial evidence. See, Raisor v. Schweiker, 540 F.Supp. 686
(S.D.Ohio 1982). The evidence "must do more than create a suspicion of the existence of the fact
to be established. ... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from it is one of fact for the jury." LeMaster v.
Secretary of Health and Human Services, 802 F.2d 839, 840 (6th Cir. 1986), quoting, NLRB v.

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Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939). The Commissioner's decision
in this case is supported by such evidence.
It is therefore recommended that the Commissioner's decision that Plaintiff was not
disabled and therefore not entitled to benefits under the Act be affirmed.
s/Michael R. Merz
United States Magistrate Judge

October 15, 2012

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(e), this period is automatically
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)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

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