England v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM denying 16 Motion for Judgment on the Pleadings; granting 18 Motion for Summary Judgment; accepting and adopting 20 Report and Recommendation; AFFIRMING the Commissioner's decision. Because no further matters remain for adjudication, the Clerk of Court will be directed to CLOSE the case. An Order shall enter. Signed by District Judge Curtis L Collier on 3/19/2013. (BJL, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
ROBIN L. ENGLAND,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

Case No. 1:12-CV-17
Collier / Lee

MEMORANDUM
Plaintiff Robin L. England (“Plaintiff”) brought this action on January 21, 2012, seeking
judicial review of the final decision of the Commissioner of Social Security (“Defendant” or
“Commissioner”) denying Plaintiff a period of disability and disability insurance benefits under 42
U.S.C. §§ 416(i) and 423. The Court referred the matter to United States Magistrate Judge Susan
K. Lee, pursuant to 28 U.S.C. § 636(b) and in accordance with Fed. R. Civ. P. 72(b) for a report and
recommendation (“R&R”) regarding the disposition of Plaintiff’s motion for judgment on the
pleadings (Court File No. 16) and Defendant’s motion for summary judgment (Court File No. 18).
The magistrate judge filed an R&R (Court File No. 20) recommending Plaintiff’s motion for
judgment on the pleadings be denied (Court File No. 16), Defendant’s motion for summary
judgment be granted (Court File No. 18), and the Commissioner’s decision be affirmed. Plaintiff
timely filed an objection to the R&R (Court File No. 21). For the following reasons, the Court will
ACCEPT and ADOPT the magistrate judge’s R&R (Court File No. 20).

I.

STANDARD OF REVIEW
This Court must conduct a de novo review of those portions of the R&R to which objection

is made and may accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1). The Court’s standard of review is essentially the same as
the magistrate judge’s – review is limited to determining if the Administrative Law Judge’s (“ALJ”)
findings are supported by substantial evidence and if proper legal standards were used. 42 U.S.C.
§ 405(g); Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (per
curiam). “Substantial evidence” means evidence a reasonable mind might accept to support the
conclusion at issue. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is greater
than a scintilla but less than a preponderance. Stanley v. Sec’y of Health & Human Servs., 39 F.3d
115, 117 (6th Cir. 1994); Brainard, 889 F.2d at 681.
If supported by substantial evidence, the Court must affirm the ALJ’s findings, even if
substantial evidence also supports the opposite conclusion. Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 475 (6th Cir. 2003). The substantial evidence standard presupposes there is a zone of choice
within which the decision makers can go either way, without interference by the courts. Felisky v.
Bowen, 35 F.3d 1027 (6th Cir. 1994). The ALJ need not discuss every aspect of the record or explain
every finding at length but must “articulate with specificity reasons for the findings and conclusions
that he or she makes” to facilitate meaningful judicial review. Bailey v. Comm’r of Soc. Sec., 1999
WL 96920, at *4 (6th Cir. Feb. 2, 1999). If the ALJ’s decision was not supported by substantial
evidence, the Court should typically reverse and remand the case for further administrative
proceedings. However, when “the proof of disability is overwhelming or . . . the proof of disability
is strong and evidence to the contrary is lacking,” the court may reverse the decision and award
benefits. Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).

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II.

DISCUSSION1
Plaintiff raises two objections to the magistrate judge’s R&R. First, Plaintiff objects to the

magistrate judge’s conclusion that it was reasonable for the ALJ to discount Plaintiff’s credibility
and the psychological examiner’s opinion due to Plaintiff’s lack of mental health treatment. Second,
Plaintiff contends the magistrate judge erred in concluding substantial evidence supported the ALJ’s
decision. The Court will address each of Plaintiff’s arguments below.
A.

Lack of Mental Health Treatment

Plaintiff contends it was improper for the ALJ to discredit Plaintiff’s credibility and discount
the opinion of Ann Ramey, M.S., the psychological examiner, due to Plaintiff’s lack of mental health
treatment. Plaintiff relies primarily on one case, Blakenship v. Bowen, 874 F.2d 1116 (6th Cir.
1989), to support this objection. Thus, a brief overview of the Blakenship decision would be in
order. In Blakenship, the United States Court of Appeals for the Sixth Circuit reviewed a decision
of the Secretary of Health and Human Services denying Mr. Blakenship disability benefits; the Sixth
Circuit ultimately concluded the Secretary’s decision was not supported by the record. Blakenship,
874 F.2d at 1124. One issue raised on appeal was whether the ALJ had erroneously disregarded a
psychiatrist’s findings because the psychiatrist had only seen the claimant once and “there was not
present a clear diagnostic picture.” Id. at 1121. Among other things, the Sixth Circuit noted “[t]he
report of a psychiatrist should not be rejected simply because of the relative imprecision of the
psychiatric methodology or the absence of substantial documentation, unless there are other reasons
to question the diagnostic techniques.” Id. In concluding the ALJ erred in discounting the

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Because Plaintiff does not object to the magistrate judge’s general recitation of the facts,
the Court will not repeat them here.
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psychiatrist’s findings, the Sixth Circuit determined there was no medical evidence that contradicted
the psychiatrist’s conclusions nor were there any valid reasons to question his conclusions. Id. at
1121-22.
The Sixth Circuit also expressed concerns that the ALJ had made credibility determinations
about Blakenship based solely on his failure to seek mental heath treatment. Most relevant to the
instant case, the Sixth Circuit stated:
And finally, although credibility determinations are within the province of the ALJ,
there does not appear to be any valid reason for disbelieving appellant’s assertions.
There were no inconsistencies in his testimony or statements to doctors regarding his
pain. Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 592 (6th
Cir.1987). His subjective statements remained consistent after the 1979 injury and
hospitalization. Appellant may have failed to seek psychiatric treatment for his
mental condition, but it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation. The Secretary
found appellant’s complaints less than credible given a perceived paucity of medical
proof. However, this should not be a determinative factor in a credibility assessment.
It, in effect, readdresses the Duncan analysis, where reasonableness of complaints
in light of medical evidence has already been assayed.
Id. at 1124.
Although Blakenship is instructive, it is also distinguishable from the instant case. Beginning
with Ms. Ramey’s opinion, it is important to recognize at the outset that the ALJ did not discredit
Ms. Ramey’s opinion “because” she was a psychological examiner. Moreover, although the ALJ
noted Ms. Ramey was a one-time examiner and pointed out her failure to use any form of
standardized testing, his reasons for discounting her opinion stretched beyond those two
observations. Specifically, he states with respect to Ms. Ramey’s opinion:
I note a Global Assessment of Functioning (GAF) of 50 per DSM criteria represents
borderline “moderate to serious” mental symptomatology but at that point its
usefulness ends in terms of evaluating the claimant’s work restrictions.
“Moderate-serious symptoms” sheds only the vaguest light on the claimant’s ability
to concentrate and persist at work tasks, the level of complexity at which she can
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work, or her capacity to adapt to changes, interact with others, or maintain long term,
competitive employment. “GAFs” do not specifically exclude or include any of these
abilities, but must be interpreted in light of the whole record. Therefore, I have
considered the claimant’s GAF scores as simply “one piece of the puzzle” in
evaluating her residual functional capacity.
Additionally, I note the claimant was only assessed by Ms. Ramey on one occasion.
As such, Ms. Ramey made an opinion based upon limited contact with the claimant.
I also note Ms. Ramey did not administer the MMPI or other standardized testing
during the claimant’s evaluation. I also note the claimant reported to Ms. Ramey that
she suffered from severe withdrawal from people but also stated that she sent text
messages. The claimant reported that she experienced depression for years but I note
the claimant had not sought specialized mental health treatment prior to her
consultative evaluation nor did she seek any consistent treatment after the evaluation.
I find Ms. Ramey’s assessment is inconsistent with the record and find the State
agency consultant’s opinion is more consistent with the record overall.
(Tr. 16). This analysis is preceded by a discussion of Ms. Ramey’s findings as well as statements
made by Plaintiff to Ms. Ramey.
The excerpt above demonstrates the ALJ considered more than just the number of visits and
Ms. Ramey’s methodology. Rather, he more broadly considered Ms. Ramey’s opinion in light of
other evidence in the record. For example, he highlights his concerns about Ms. Ramey’s GAF score
findings and describes what he believes is an inconsistency in Plaintiff’s statements regarding her
severe withdrawal from people. Ms. Ramey’s opinion is based in part on Plaintiff’s subjective
statements. The ALJ concludes Ms. Ramey’s opinion is inconsistent with the record. Blakenship
does not state concerns regarding the number of visits, methodology, or lack of substantial
documentation cannot be noted; only that they cannot serve as the basis for rejecting a psychological
examiner’s opinion in the absence of other grounds.
Moving to the related issue of Plaintiff’s credibility, the Court agrees with the magistrate
judge’s finding that the ALJ did not apply the wrong legal standard. Blakenship expressly states that
the lack of medical proof should not be a “determinative factor” when assessing the claimant’s
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credibility. 874 F.2d at 1124. With that said, when valid reasons exist to disbelieve the claimant’s
statements--such as inconsistencies in her statements to doctors pertaining to her pain--those reasons
should be taken into account. Id. Here, the ALJ not only observed that Plaintiff had failed to seek
psychiatric treatment; he also noted some of Plaintiff’s statements regarding the “intensity,
persistence, and limiting effects” were inconsistent with the residual functional capacity assessment.2
As one illustration, the ALJ notes how Plaintiff reported that she suffered from severe withdrawal
yet still sent text messages. Plaintiff contends these statements are not inconsistent. However, that
would obviously depend upon whether “severe withdrawal” refers only to physical withdrawal or
complete social withdrawal. That the ALJ implicitly reached the latter conclusion to find Plaintiff’s
statements inconsistent is not improper. The Court also agrees with the magistrate judge’s finding
that Plaintiff was not being penalized for not seeking mental health treatment, but the lack of a
record “cast[] doubt on the severity of her symptoms as reported to Ms. Ramey” (Court File No. 20
at 15).
Taken together, the Court concludes the ALJ’s decision to afford Ms. Ramey’s opinion less
weight and to discount the credibility of Plaintiff is supported by substantial evidence. Accordingly,
Plaintiff’s first objection is denied.
B.

Substantial Evidence

Plaintiff claims substantial evidence was lacking to support the ALJ’s decision. Plaintiff
appears to be arguing the ALJ gave state agency consultant Dr. Calway-Fagan’s opinion more
weight at the expense of Ms. Ramey’s. She believes, however, Ms. Ramey’s opinion should have

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The ALJ also reached similar conclusions with respect to Plaintiff’s credibility after she
testified at the hearing noting it was credible “only to the extent it is consistent with my residual
functioning capacity assessment” (Tr. 17).
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been afforded more weight and not discounted, among other reasons, because it was more detailed
than Dr. Calway-Fagan’s. She also notes the ALJ failed to explain his reasons for giving Dr.
Calway-Fagan’s opinion more weight and, even if such reasons had been included, they would not
have been reasonable.
The Court agrees with the magistrate judge’s observation in the R&R that the ALJ gave
substantial attention to discussing the weight of Ms. Ramey’s opinion--not because he was directly
comparing her testimony to Dr. Calway-Fagan’s--but because acceptance of Ms. Ramey’s opinion
in full would likely have required a finding of disability. Therefore, his decision to discount Ms.
Ramey’s opinion required greater explanation. Dr. Calway-Fagan’s opinion, in contrast, was not
binding on the ALJ and was more consistent with the overall record.
For instance, the ALJ noted the Volunteer Behavioral Health Care System in November 2010
diagnosed Plaintiff with “major depressive do that [was] recurrent and severe” and found she had
a GAF score of 55 (Tr. 16, 312). A GAF score between 51 and 60 corresponds with a “moderate”
impairment. Nowlen v. Comm’r of Soc. Sec., 277 F. Supp. 2d 718, 726 (E.D. Mich. 2003). The ALJ
then noted that Dr. Calway-Fagan opined Plaintiff had some moderate mental health limitations and
“could understand and remember one to three step tasks, could concentrate and persist for two hour
periods within an eight-hour day with routine breaks, could interact superficially with the public,
co-workers and supervisors, could adapt to limited change and set limited independent goals” (Court
File Nos. 11, 271, 273, 277). Even just viewing this evidence, a reasonable mind could conclude Dr.
Calway-Fagan’s opinion was consistent with what was already in the record. In contrast, Ms.
Ramey’s opinion, which is detailed in the fact section of the R&R, would have imposed much more
restrictive limitations.

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Taking all of this into account, as well as the magistrate judge’s other findings and
conclusions in the R&R, the Court agrees that the ALJ’s residual functioning capacity assessment
as well as his overall decision are supported by substantial evidence.

III.

CONCLUSION
For the foregoing reasons, the Court will ACCEPT and ADOPT the magistrate judge’s

R&R (Court File No. 20). The Court will DENY Plaintiff’s motion for judgment on the pleadings
(Court File No. 16), GRANT Defendant’s motion for summary judgment (Court File No. 18), and
AFFIRM the Commissioner’s decision. Because no further matters remain for adjudication, the
Clerk of Court will be directed to CLOSE the case.
An Order shall enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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