Perryman v. Social Security Administration

Filing 18

REPORT AND RECOMMENDATION: For the reasons explained, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 14 ) be DENIED, and the Commissioner's decision AFFIRMED. Signed by Magistrate Judge Joe Brown on 9/19/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RACHEL BIANCA PERRYMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 3:15-00604
Judge Nixon/Brown

To: The Honorable John T. Nixon, Senior United States District Judge.
This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the
final decision of the Social Security Administration (SSA) through its Commissioner, denying
plaintiff’s application for Supplemental Security Income (SSI) under Title XVI of the Social
Security Act (the Act), 42 U.S.C. §§ 1381 et seq. For the reasons explained below, the undersigned
RECOMMENDS that plaintiff’s motion for judgment on the administrative record (Doc. 14) be
DENIED, and the Commissioner’s decision AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff applied for SSI on August 18, 2011, alleging a disability onset date of August 16,
2011.1,2 Plaintiff claimed she was unable to work due to post-traumatic stress disorder, bipolar
disorder, anxiety disorder, obsessive compulsive disorder, and depression. (Doc. 12, p. 98)
Plaintiff’s application was denied initially on January 4, 2012, and upon reconsideration on
June 19, 2012. Plaintiff requested a hearing before an ALJ on June 29, 2012. A hearing was held
1

References to page numbers in the administrative record (Doc. 12) are to the page numbers that appear in
bold in the lower right corner of each page.
2

Unless otherwise indicated, the procedural history below is adopted from the jurisdiction and procedural
history section of the Administrative Law Judge’s (ALJ) decision. (Doc. 12, p. 19)

in Nashville on September 25, 2013 before ALJ Michelle Thompson. The ALJ entered an
unfavorable decision on December 27, 2013 (Doc. 12, pp. 16-41), after which plaintiff filed a
request with the Appeals Council on February 3, 2014 to review the ALJ’s decision (Doc. 12, pp.
14-15). Plaintiff moved for an extension of time to “submi[t] . . . additional evidence and/or a brief
to address the issues.” (Doc. 12, p. 14) The Appeals granted plaintiff’s motion on February 19,
2014. (Doc. 12, pp. 7-13) Thereafter, the Appeals Council denied plaintiff’s request for a hearing
on March 31, 2015 (Doc. 12, pp. 1-5), whereupon the ALJ’s decision became the final decision of
the Commissioner.
Plaintiff brought this action through counsel on May 29, 2015 (Doc. 1), following which she
filed a motion for judgment on the administrative record on October 10, 2015 (Doc. 14). The
Commissioner responded on November 24, 2015. (Doc. 17 ) Plaintiff did not reply. This matter
is now properly before the court.
II. EVIDENCE3
Dr. Pramod Shah, M.D., completed a check-box form on January 9, 2013 captioned:
“TREATING SOURCE STATEMENT . . . MEDICAL ASSESSMENT OF ABILITY TO DO
WORK-RELATED ACTIVITIES (MENTAL)” (hereinafter “form” or “opinion”) (Doc. 12, pp.
403-07) Dr. Shah checked the boxes on the form assessing plaintiff with a fair4 ability to follow
work rules, use judgment, understand, remember, and carry out simple job instructions, and maintain
personal appearance. (Doc. 12, pp. 403, 405) Dr. Shah also checked the boxes on the form

3

The excerpts of the administrative record below are those necessary to respond to plaintiff’s motion for
judgment on the administrative record. The remainder of the record is incorporated herein by reference.
4

The form that Dr. Shah completed defined “fair” as, “[a]bility to function in this area is seriously limited,
but not precluded.” (Doc. 12, p. 403)

2

assessing plaintiff with an ability of poor to none5 in relating with co-workers and the public,
interacting with supervisors, dealing with work stress, functioning independently, maintaining
attention and concentration, understanding, remembering, and carrying

out complex job

instructions, carrying out detailed but not complex job instructions, behaving in an emotionally
stable manner, relating predictably in social situations, and demonstrating reliability.6 (Doc. 12, pp.
403, 405)
Dr. Shah made no entries in the several sections on the form where he was instructed to
“[d]escribe any limitations and include the medical/clinical findings that support this assessment.”
(Doc. 12, ¶¶ I.9, II.4, III.5, pp. 403, 405) Dr. Shah also did not identify/explain any limitations in
plaintiff’s “intellectual ability, thought organization, memory, comprehension, etc.” that would
affect her ability to work as instructed on the form. (Doc. 12, p. 405) Apart from checking the
boxes on the form, Dr. Shah’s only other entries are the words, “As above,” in response to the
instruction: “State any other work-related activities which are affected by the impairment, and
indicate how the activities are affected. What are the medical/clinical findings that support this
assessment?” (Doc. 12, p. 407) Dr. Shah also checked the box labeled “Yes” in response to the
question on the form, “Can the individual manage benefits in his or her own best interest?” (Doc.
12, p. 407)
III. ANALYSIS
A. The ALJ’s Notice of Decision
Under the Act, a claimant is entitled to disability benefits if she can show her “inability to
5

The form that Dr. Shah completed defined “poor or none” as, “[n]o useful ability to function in this area.”
(Doc. 12, p. 403)
6

Dr. Shah’s opinion in the record contains two blank, heavily smudged pages. (Doc. 12, pp. 404, 406) Upon
examination, the smudges on these pages appear to be reversed ghost images of the pages immediately preceding them.
These pages do not add any additional information to Dr. Shah’s opinion.

3

engage in any substantial gainful activity by reason of any 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 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§
404.1505, 416.905. Corresponding regulations outline the five-step sequential process to determine
whether an individual is “disabled” within the meaning of the Act. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 374-75 (6th Cir. 2014). While the
claimant bears the burden of proof at steps one through four, the burden shifts to the Commissioner
at step five to identify a significant number of jobs in the economy that accommodate the claimant’s
RFC and vocational profile. Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011).
B. Standard of Review
The district court’s review of the Commissioner’s final decision is limited to determining
whether the Commissioner’s decision is supported by substantial evidence in the record, and
whether the decision was made pursuant to proper legal standards. 42 U.S.C. § 405(g); Gayheart,
710 F.3d at 374. Substantial evidence is less than a preponderance but more than a scintilla; it refers
to relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971); see Gentry v. Comm’r of Soc. Sec., 741 F.3d 708,
722 (6th Cir. 2003). The Commissioner’s decision must stand if substantial evidence supports the
conclusion reached, even if the evidence supports a different conclusion. Gayheart, 710 F.3d at 374.
C. Claim of Error
Whether the ALJ Improperly Assigned Less Weight to the
Treating Psychiatrist’s Opinion of Limitations
(Doc. 14-1, pp. 7-9)
Plaintiff argues that the opinion of “Dr. Milagros D. Pasquel”7 “is well supported by his own

7

The correct spelling of this doctor’s last name is “Pascual.” (Doc. 12, p. 512)

4

findings and the record as a whole.” (Doc. 14-1, p. 8) Plaintiff argues further that Dr. Pascual’s
opinion also “is supported by the only substantial evidence in this case.” (Doc. 14-1, p. 8)
The opinion at issue is at pp. 403-07 in the administrative record. (Doc. 14-1, p. 7)
Although plaintiff attributes this opinion to Dr. Pascual, the form at pp. 403-07 was completed and
signed by Dr. Shah. In other words, the opinion at issue is Dr. Shah’s, not Dr. Pascual’s. Therefore,
the Magistrate Judge concludes that plaintiff’s reference to “Dr. Pasquel” is an editing error, and that
plaintiff actually meant to argue that the ALJ gave Dr. Shah’s opinion too little weight.
Under the standard commonly called the “treating physician rule,” the ALJ is required to
give a treating source’s opinion “controlling weight” if two conditions are met: the opinion “‘is
well-supported by medically acceptable clinical and laboratory diagnostic techniques,’” and the
opinion “‘is not inconsistent with the other substantial evidence in [the] case record.’” Gayheart,
710 F.3d at 376 (quoting 20 C.F.R. § 404.1527(c)(2). However, the ALJ “is not bound by a treating
source’s opinions, especially when there is substantial medical evidence to the contrary.” Cutlip v.
Sec’y of Health and Human Serv’s, 25 F.3d 284, 287 (6th Cir. 1994). That said, the ALJ is required
to provide “good reasons” for discounting the weight given to a treating-source’s opinion.
Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2). The reasons must be “‘supported by
the evidence in the case record, and must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.’” Gayheart, 710 F.3d at 376 (quoting SSR 96–2p, 1996 WL 374188 at *5 (SSA)).
The Magistrate Judge will address first whether the ALJ gave “good reason” for giving Dr.
Shah’s opinion little weight. The ALJ’s treatment of Dr. Shah’s opinion is quoted below in its
entirety:
As for the opinion evidence, the undersigned gives little weight to the
treating source statement from Pramod A. Shah, M.D., the claimant’s
5

treating psychiatrist at Cumberland. Dr. Shah opined that the
claimant had a fair ability (i.e., seriously limited but not precluded
ability) to follow work rules; use judgment; understand, remember,
and carry out simple job instructions; and maintain personal
appearance. He opined that she had poor or no ability (i.e., no useful
ability) to relate to coworkers; deal with the public; interact with
supervisors; deal with work stress; function independently; maintain
attention and concentration; understand, remember, and carry out
detailed or complex instructions; behave in an emotionally stable
manner; relate predicably in social situations; and demonstrate
reliability.
Dr. Shah’s assessment is given little weight for several reasons. Dr.
Shah did not include any medical or clinical findings to support
his assessment. Further, the consistently unremarkable mental status
examinations of normal organized and logical thought processes,
normal thought content, and intact attention, memory, judgment, and
concentration do not support Dr. Shah’s assessment of fair ability to
follow work rules, use judgment, perform simple tasks and poor to no
ability to maintain attention and concentration. The claimant was
regularly noted to have normal appearance, which indicated more
than a fair ability to maintain personal appearance. Further, in her
function report, the claimant denied having any problems getting
along with people and stated that she got along ‘pretty good’ with
authority figures. This is not consistent with Dr. Shah’s opinion that
the claimant has no useful ability to relate to coworkers, deal with the
public, and interact with supervisors.
Further, claimant’s ability to care for her children, use the computer,
attend school meetings is not consistent with Dr. Shah’s finding that
she has no useful ability to perform detailed tasks, deal with stress,
and demonstrate reliability. Also, as noted above, the claimant
consistently presented to treatment sessions with a euthymic mood,
indicating that she has some ability to relate predictably in social
situations and behave in an emotionally stable manner. While the
claimant needs some assistance with daily living activities, there is
no evidence that she has no useful ability to function independently.
For example, Exhibits B6F and B12F show that the claimant used a
transportation company and attended treatment sessions and the
psychological consultative evaluation on her own. Finally, the
undersigned notes that after finding that the claimant had seriously
precluded to no useful mental abilities, Dr. Shah opined that she
could still manage benefits in her own best interest. This reflects an
inconsistency in Dr. Shah’s assessment. Dr. Shah’s assessment is
6

therefore given little weight.
(Doc. 12, pp. 34-35) The ALJ’s reasons above for giving Dr. Shah’s treating source statement “little
weight” are good ones. The next question is whether the ALJ’s decision to give Dr. Shah’s opinion
little weight is supported by the evidence.
One need not go beyond the ALJ’s first reason, in bold above at p. 6, to answer the question
whether the ALJ’s decision to give Dr. Shah’s opinion little weight is supported by the evidence.
As discussed above, at pp. 2-3, Dr. Shah “did not include any medical or clinical findings to support
his [opinion].” More particularly, he cited no clinical or diagnostic evidence in support of his
opinions, nor did he provide any references to the record/treatment notes to support those opinions.
Dr. Shah merely checked fifteen (15) boxes.
The Sixth Circuit has held that “[a] treating doctor’s disability determination must be fully
supported by direct reference to detailed, clinical, diagnostic evidence in the medical reports.”
Carter v. Comm’r of Soc. Sec., 36 Fed.Appx. 190, 191 (6th Cir. 2002)(emphasis added). Indeed, the
Sixth Circuit recently noted that an “administrative law judge properly g[i]ves a check-box form
little weight where,” as in the instant case, “the physician provide[s] no explanation for the
restrictions entered on the form and cite[s] no supporting medical evidence.” Ellars v. Comm’r of
Soc. Sec., 647 Fed.Appx. 563 (6th Cir. 2016)(citing Rogers v. Comm’r of Soc. Sec., 225 F.3d 659,
2000 WL 799332 *6 (6th Cir. 2000)(treating physician’s documentation of impairments on a form
with check-off boxes was not entitled to great weight when no further explanation was given)).
More recently, the Sixth Circuit noted again the disfavor for unsupported “check-box” forms similar
to the one Dr. Shah completed:
The Sixth Circuit has cast doubt on the usefulness of check-box
forms where the physician fails to give any explanation for his
findings. See Hernandezx v. Comm’r of Soc. Sec., No 15-1875, 2016
WL 1055828 at * 4 (6th Cir. Mar. 17, 2016)(ALJ’s erroneous
7

consideration of treating physician’s check-box analysis was
harmless error where the form was unaccompanied by any
explanation and was ‘weak evidence at best’ that ‘meets our patently
deficient standard’); Carreon v. Massanari, 51 Fed.Appx. 571, 574
(6th Cir. 2002)(ALJ may properly ignore statements of treating
physicians that are conclusory and unsupported by the objective
medical record); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530
(6th Cir. 1997)(treating physician’s mere documentation of
impairments was not sufficient to support his opinion that claimant
could not perform past job).
Denham v. Comm’r of Soc. Sec., Slip Copy, 2016 WL 4500713 * 3 (6th Cir. 2016). A “conclusory
check-box form . . . with no explanation of [the] reasoning, identification of objective criteria, or
reference to medical records which would support [the] findings” as in Denham met the Sixth
Circuit’s characterization of a “patently deficient” medical opinion.
As shown above, the ALJ gave “good reason” for giving Dr. Shah’s opinion little weight.
The evidence also supports the ALJ’s decision for having done so. Consequently, plaintiff’s claim
of error is without merit.8
IV. CONCLUSION
AND
RECOMMENDATION
For the reasons explained below, the undersigned RECOMMENDS that plaintiff’s motion
for judgment on the administrative record (Doc. 14) be DENIED, and the Commissioner’s decision
AFFIRMED. The parties have fourteen (14) days of being served with a copy of this R&R to serve
and file written objections to the findings and recommendation proposed herein. A party shall
respond to the objecting party’s objections to this R&R within fourteen (14) days after being served
with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this
R&R may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 142, reh’g denied,
8

The Magistrate Judge notes for the record that the result would have been the same regardless of whose
opinion the one at issue might have been.

8

474 U.S. 111 (1986); see Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011).
ENTERED this 19th day of September, 2016.

/s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge

9