Reynolds v. Social Security Administration, Commissioner of

Filing 19

REPORT AND RECOMMENDATIONS re 17 MOTION for Summary Judgment filed by Social Security Administration, Commissioner of, 13 First MOTION for Judgment on the Pleadings filed by William C Reynolds Signed by Magistrate Judge William B Carter on 1/3/2014. (DJH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
WILLIAM C. REYNOLDS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No: 1:12-CV-396
Collier/Carter

REPORT AND RECOMMENDATION
This action was instituted pursuant to 42 U.S.C. '' 405(g) and 1383(c)(3) seeking
judicial review of the final decision of the Commissioner denying the plaintiff a period of
disability, disability insurance benefits, and supplemental security income under Title II and Title
XVI of the Social Security Act, 42 U.S.C. '' 416(I), 423, and 1382.
This matter has been referred to the undersigned pursuant to 28 U.S.C. ' 636(b) and Rule
72(b) of the Federal Rules of Civil Procedure for a report and recommendation regarding the
disposition of Plaintiff's Motion for Judgment on the Pleadings (Doc. 13) and Defendant=s
Motion for Summary Judgment (Doc. 17).
For the reasons stated herein, I RECOMMEND the Commissioner’s decision be
REVERSED and REMANDED pursuant to Sentence Four of 42 U.S.C. 405(g).
Plaintiff's Age, Education, and Past Work Experience
Plaintiff, who was born in 1966 (Tr. 19, 73, 77, 91), was forty-four years old with at least
a high school education as of the ALJ=s decision (Tr. 19, 21, 97, 1177). Plaintiff has past
relevant work as a maintenance mechanic supervisor, medium exertional level, skilled (Tr. 19).

Applications for Benefits
Plaintiff protectively applied for disability insurance benefits and supplemental security
income on February 16, 2010, alleging disability beginning September 1, 2009 (Tr. 12, 73, 77,
1177-78). His claims were denied initially on July 25, 2010 (Tr. 22-23), and on reconsideration
on February 15, 2011 (Tr. 24-25). An administrative law judge (ALJ) held a hearing on
September 9, 2011 (Tr. 1173-94), and issued a decision on October 6, 2011 finding Plaintiff not
disabled (Tr. 12-21). The Appeals Council denied Plaintiff=s request for review (Tr. 4-7), and the
ALJ=s decision is now ripe for review under 42 U.S.C. ' 405(g).
Plaintiff alleged he was disabled due to head trauma, brain injury, memory loss, and post
traumatic stress disorder (PTSD) (Tr. 96).
Standard of Review - Findings of the ALJ
To establish disability under the Social Security Act, a claimant must establish he/she is
unable to engage in any substantial gainful activity due to the existence of Aa medically
determinable physical or mental impairment that can be expected to result in death or that 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); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). The Commissioner
employs a five-step sequential evaluation to determine whether an adult claimant is disabled. 20
C.F.R. ' 404.1520. The following five issues are addressed in order: (1) if the claimant is
engaging in substantial gainful activity he/she is not disabled; (2) if the claimant does not have a
severe impairment he/she is not disabled; (3) if the claimant=s impairment meets or equals a
listed impairment he/she is disabled; (4) if the claimant is capable of returning to work he/she has
done in the past he/she is not disabled; (5) if the claimant can do other work that exists in
significant numbers in the regional or the national economy he/she is not disabled. Id. If the
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ALJ makes a dispositive finding at any step, the inquiry ends without proceeding to the next step.
20 C.F.R. ' 404.1520; Skinner v. Secretary of Health & Human Servs., 902 F.2d 447, 449-50
(6th Cir. 1990). Once, however, the claimant makes a prima facie case that he/she cannot return
to his/her former occupation, the burden shifts to the Commissioner to show that there is work in
the national economy which he/she can perform considering his/her age, education and work
experience. Richardson v. Secretary, Health and Human Servs., 735 F.2d 962, 964 (6th Cir.
1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review by this Court is whether the findings of the Commissioner
are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 92
S. Ct. 1420 (1971); Landsaw v. Secretary, Health and Human Servs., 803 F.2d 211, 213 (6th Cir.
1986). Even if there is evidence on the other side, if there is evidence to support the
Commissioner's findings they must be affirmed. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir.
1971). The Court may not reweigh the evidence and substitute its own judgment for that of the
Commissioner merely because substantial evidence exists in the record to support a different
conclusion. The substantial evidence standard allows considerable latitude to administrative
decision makers. It 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) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Secretary, Health
and Human Servs., 790 F.2d 450 n. 4 (6th Cir. 1986).
After considering the entire record, the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity since
September 1, 2009, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
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3.

The claimant has the following severe impairments: status post traumatic
brain injury; obesity; rule out memory disorder; mood disorder; and posttraumatic stress disorder (20 CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d),404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a); in addition, he can tolerate no
exposure to workplace hazards such as unprotected heights or moving
machinery; can perform simple one-and two-step tasks; must have only
minimal contact with the public in a job dealing primarily with things
rather than people, and infrequent workplace changes.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on December 3, 1966, and was 41 years old,
which is defined as a younger individual age 18-44, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569 and
404.1569(a) 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from September 1, 2009, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).

(Tr. 14-20).

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Issues Presented
I.

The ALJ’s mental residual functional capacity (“RFC”) finding is not supported by
substantial evidence, as the ALJ either wholly ignored material pieces of evidence
or did not provide adequate evaluation of other material evidence.

II.

The ALJ’s decision is not supported by substantial evidence, the ALJ failed to
consider the effects of the claimant’s well-established chronic, daily headaches on
his ability to sustain attendance.
Analysis
Both of the issues presented assert significant issues were not addressed by the ALJ in his

opinion and that there is therefore not substantial evidence to support the decision. For reasons
that follow, I agree.
GAF scores
The ALJ rejected the Global Assessment of Functioning (“GAF”) scores. The ALJ
reasoned that GAF scores “are not based on standardized norms and admittedly provide only a
snapshot impression of an individual’s psychological status. . . .” (Tr. 16). The ALJ further
stated that “detailed observations and descriptions in a provider’s notes are a vastly superior
reflection of an individual’s true functional abilities than a shorthand GAF score. . . .” (Id.). As
Plaintiff notes however, the ALJ does not cite to any observations and descriptions from treating
providers to contradict the assigned GAF scores. Plaintiff argues the ALJ rejected the numerous
GAF scores in the record that would support a finding of severe social and occupational
impairment (Tr. 16). A review of the record shows that from the time of Plaintiff’s alleged onset
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date through the date of the hearing in this matter, treating psychologists and psychiatrists at the
VA, almost without exception, rated Plaintiff’s GAF at 50 and on one occasion 45. (See, e.g.,
Tr. 763, 780, 783, 790, 1044 and 1068). In light of the multiple GAF scores in this range, I
conclude a fuller explanation of the reason for their rejection is required. I note that the GAF
scale shows 41 to 50 as serious symptoms but the range of 51 to 60 reflects moderate symptoms.
There may be reasons why the ALJ concluded the scores did not reflect serious symptoms but
the articulation of those reasons is for the ALJ and not this court.
Evaluations of Record
Turning to other evaluations of record, the ALJ failed to adequately address some
opinions and failed to provide adequate support for the rejection of others. Two separate VA
examining doctors, clinical psychologist Kristine Lokken, Ph.D. and Board Certified
Psychiatrist, Robert Adams, M.D., opined that Plaintiff has severe, disabling mental and
personality impairments that arguably might preclude him from fulltime work. The ALJ’s
decision does not discuss these assessments. In addition, while the ALJ did discuss the
evaluation performed by David M. Thompson, M.A., he did not provide any rationale for
rejecting the portions of that assessment that were supportive of disability (Tr. 15, 722-26).
Specifically, the ALJ did not adequately explain why he rejected Mr. Thompson’s assessment
that Plaintiff had moderate to marked limitations in interacting with others and adapting to
changes and requirements in the workplace (Tr. 15, 725). I conclude these omissions require
remand.
Social Security regulations provide that the ALJ is required to evaluate every medical
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opinion received. See 20 C.F.R. § 404.1527(b). The regulations specifically provide that
“[r]egardless of its source, we will evaluate every medical opinion we receive,” using the
following factors:
(1) the examining relationship, with more weight accorded to a physician who has
examined the claimant than one who has not;
(2) the treatment relationship, including the length of treatment of the claimant, the
frequency of examination, and the nature and extent of the treatment relationship;
(3) the support of the physician’s opinion afforded by the medical evidence of record;
(4) the consistency of the opinion with the record as a whole;
(5) the specialization of the physician, with more weight accorded to a specialist than to a
non-specialist; and
(6) other factors, including the amount of understanding of the Commissioner’s disability
programs and their evidentiary requirements, and the extent to which an acceptable
medical source is familiar with other information in the case record.

20 C.F.R. § 404.1527(d). If the medical source is a treating medical provider, the regulations
require that the ALJ provide “good reasons” in the “notice of determination or decision for the
weight we give your treating source’s opinion.” 20 C.F.R. § 404.1527(d)(2).
In this case the ALJ failed to evaluate the VA medical opinions and failed to provide any
explanation for the weight given to portions of the consultative psychological evaluation.
The VA Rating
Finally, the ALJ failed to adequately evaluate Plaintiff’s 100% VA rating. The ALJ
dismissed the VA disability determination by simply noting “that disability decisions of other
entities, such as the Veterans Administration, are made using different criteria and thus are not
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binding on my decision.” (Tr. 19). According to the Commissioner’s own rules and regulations,
a decision by any governmental agency about whether an individual is disabled must be
considered evidence. 20 C.F.R. § 404.1504(b)(5). While such evidence may not be binding on
the Administration, various Circuit Courts, including the Sixth Circuit, have held that the
Commissioner must give the decisions of other agencies evidentiary weight.
Plaintiff cites Stewart v. Heckler, where the Court of Appeals for the Sixth Circuit held
that a claimant’s subjective complaints together with a Veterans Administration finding of total
disability and an absence of substantial evidence to the contrary required an award of disability
benefits. Stewart v. Heckler, 730 F.2d 1064, 1068 (6th Cir. 1984). In Harris v. Heckler, the
Court described as audacious the Commissioner’s denial of disability benefits despite favorable
disability determinations by a workers’ compensation program and by the Black Lung Program.
Harris v. Heckler, 756 F.2d 431, 434 (6th Cir. 1985). Furthermore, the Fourth, Fifth, Ninth, and
Eleventh Circuit Courts have held that a VA ratings decision was entitled to “great weight.” See
De Loatche v. Heckler, 715 F. 2d 148, 150 (4th Cir. 1983); Chambliss v. Massanari, 269 F.3d
520, 522 (5th Cir. 2001); McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Brady v.
Heckler, 724 F.2d 914, 921 (11th Cir. 1984).
In this case, the ALJ broadly concluded, “while such decisions may be entitled to great
weight, they are merely one of the many factors I have considered in reviewing the record as a
whole.” (Tr. 19). However, the ALJ appears to have dismissed the VA determination without
giving any weight to its conclusion, despite the statement that “some weight” was given. It is
unclear how much weight was given to the evaluations of the VA.
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Headaches
Plaintiff next argues remand is required because the ALJ failed to address Plaintiff’s
recurrent, severe headaches, despite the record being replete with references to evaluation and
treatment of chronic headaches. At the hearing in this matter, Plaintiff testified he has chronic
headaches on a daily basis. On a scale of one to ten, Plaintiff rated most headaches at a seven.
He testified that he was very sensitive to light. He further testified that he experienced “real bad”
migraine type headaches occurring at least two to three times per week, for which he took
medication. (Tr. 1183-84).
As Plaintiff argues, testimony regarding headaches is supported by the medical evidence
of record. On September 17, 2009, neurologist Brain Wade Peterson, M.D. evaluated Plaintiff
for headaches (Tr. 231-35). On October 29, 2009, Plaintiff was approved for a neurology
consultation for a possible nerve block for “post-traumatic headaches that may have a component
of [left] occipital neuralgia (Tr. 213). In the neuropsychological evaluation performed by Dr.
Lokken, Plaintiff reported daily headaches since his traumatic brain injury that had worsened
over time. Plaintiff stated in that evaluation that his headaches were accompanied by
intermittent nausea, dizziness, and sensitivity to light and noise (Tr. 217). Dr. Peterson saw
Plaintiff again on February 25, 2010 and adjusted Plaintiff’s medications (Tr. 281). Plaintiff
underwent a neurological examination on July 19, 2010, as part of the evaluation for serviceconnected disability related to his headaches (Tr. 809-16).
The Commissioner responds noting that Plaintiff appears to contend the ALJ should have
found his complaints of headaches to be a severe impairment and then argues that at step two,
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the ALJ found Plaintiff had severe impairments of status post traumatic brain injury, obesity, rule
out memory disorder, mood disorder, and PTSD (Tr. 14-15, Finding No. 3). Therefore, the ALJ
found in Plaintiff=s favor at step two and proceeded through the other steps of the sequential
evaluation process (Tr. 14-20). See 20 C.F.R. '' 404.1520(a)(4)(iii)-(v), 416.920(a)(4)(iii)-(v).
Therefore, the specific impairments the ALJ noted in his step two finding and whether other
impairments could possibly have been considered severe is irrelevant. See Maziarz v. Sec=y of
Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); see also McGlothin v. Comm=r of
Soc. Sec., 299 F. App=x 516, 522 (6th Cir. 2008) (noting it was Alegally irrelevant@ that an ALJ
found some impairments not severe because the ALJ found the claimant had severe impairments
and completed the evaluation process).
The Commissioner also argues Plaintiff failed to meet his burden of proving he had any
additional separate and distinct severe impairments during the relevant period, arguing that to
qualify as a severe impairment at step two of the sequential evaluation process, an impairment
must significantly limit a claimant=s physical or mental abilities to do basic work activities.
Citing; 20 C.F.R. '' 404.1520(c), 404.1521(a), 416.920(c), 416.921(a); Social Security Ruling
(SSR) 96-3p, 1996 WL 374181 (S.S.A.), at *2. The ALJ already found Plaintiff had the severe
impairment of status post traumatic brain injury (Tr. 14, Finding No. 3), therefore, continues the
argument, Plaintiff fails to show his headaches were a separate and distinct severe impairment.
The Commissioner then points to two treating neurologists Brian Wade Peterson, M.D., and
Michael J. McLean, M.D. Both indicated Plaintiff=s headaches were the result of his past head
trauma (Tr. 667, 816). Thus, Plaintiff=s headaches were accounted for in the severe impairment
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of status post traumatic brain injury.
However, in this case the ALJ failed to discuss the effects of Plaintiff’s headaches on his
ability to perform work activity. There is evidence to support the presence of possibly disabling
headaches. Both Plaintiff’s testimony and the medical evidence confirming his history of
headaches support a finding that headaches constituted an impairment that could result in workrelated limitations.

The ALJ, however, failed to address this aspect of Plaintiff’s case so I have

no way to know if he considered the Plaintiff’s headaches or their possible effect on his ability to
work.
Therefore I conclude these additional issues need further development. This is a very
complicated case with a large record. I am recommending remand but in doing so I commend
the ALJ’s, as I have in the past, for the difficult task they face in adjudicating the vast number of
cases which they must handle in a limited amount of time.
Conclusion
Having carefully reviewed the entire administrative record and the briefs of the parties
filed in support of their respective motions, I conclude the findings of the ALJ and the decision
of the Commissioner that Plaintiff can perform sedentary work with additional limitations is not
supported by substantial evidence for the reasons set forth above. However, evidence of
disability is not overwhelming and there is evidence to support the Commissioner therefore
remand is the appropriate remedy. Accordingly, I RECOMMEND1 that:

1

Any objections to this Report and Recommendation must be served and filed within
fourteen (14) days after service of a copy of this recommended disposition on the objecting
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1. Plaintiff’s motion for judgment on the pleadings (Doc. 13) seeking judgment as a matter
of law be GRANTED in PART to the extent it can be said to seek remand under Sentence
Four of 42 U.S.C. 405(g).
2. Defendant’s motion for summary judgment (Doc. 17) be DENIED.
3. The Commissioner’s decision denying benefits be REVERSED and REMANDED
pursuant to Sentence Four of 42 U.S.C. 405(g) for action consistent with this Report and
Recommendation.
SBj|ÄÄ|tÅ UA `|àv{xÄÄ VtÜàxÜ
UNITED STATES MAGISTRATE JUDGE

party. Such objections must conform to the requirements of Rule 72(b) of the Federal Rules of
Civil Procedure. Failure to file objections within the time specified waives the right to appeal
the District Court's order. Thomas v. Arn, 474 U.S. 140, 88 L.Ed.2d 435, 106 S.Ct. 466 (1985).
The district court need not provide de novo review where objections to this report and
recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir.
1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of
Teachers, 829 F.2d 1370 (6th Cir. 1987).
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