Opinion
Case No. 3:12-cv-426
11-27-2013
DELISA COSBY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED;
AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("PageID") (PageID 46-65) (ALJ's decision)).
I.
Plaintiff applied for DIB on December 4, 2007, alleging that she was disabled beginning January 31, 2007, largely as a result of mental disorders. (PageID 154, 248, 306). This application was denied initially and on reconsideration. (PageID 154-55). On September 9, 2010, a hearing was held before an ALJ. (PageID 76-132). Plaintiff was represented by an attorney and a vocational expert also appeared and testified. (Id.) The ALJ held a supplemental hearing on May 18, 2011. (PageID 133-152). A medical expert appeared and testified. (PageID 133-152).
The ALJ issued a decision on July 26 2011, finding that while Plaintiff did have some limitations, she could still perform work that existed in significant numbers in the national economy and that Plaintiff was therefore not entitled to DIB. (PageID 50, 57, 64-65). Specifically, the ALJ found Plaintiff had the ("RFC") to perform light work with some limitations. The ALJ's decision became final and appealable on November 7, 2012, when the Appeals Council denied Plaintiff's request for review. (PageID 36). See 20 C.F.R. §§ 404.955, 404.981. Plaintiff filed the instant action pursuant to 42 U.S.C. Section 405(g).
A claimant's residual functional capacity ("RFC") is an assessment of "the most [she] can still do despite [her] limitations." 20 C.F.R. § 416.945(a)(1).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
Those limitations include: "The opportunity to alternate between sit and standing at 30 minutes intervals throughout the workday; no more than frequent operation of foot controls with the left lower extremity; no climbing of ladders, ropes or scaffolding; no more than occasional climbing of ramps or stairs; no more than frequent balancing; no more than moderate exposure to environmental irritants such as fumes, odors, gases, dust, and poorly ventilated areas; no exposure to hazardous machinery or unprotected heights; only simple, routine and repetitive tasks; a work environment free of fast-paced production requirements; duties requiring only simple, work-related decision; few, if any, work-place changes; no interaction with the public; no interaction with co-workers; no more than occasional over-the-shoulder supervision; no tasks requiring complex written or verbal communication." (PageID 57).
Plaintiff was 31 years old on the alleged disability onset date. (PageID 64). She has an eleventh grade or "limited" education as defined for Social Security purposes. 20 C.F.R. § 404.1564. Plaintiff's past relevant work includes fast-food worker, sandwich maker, vegetable processor, mental retardation aide, telemarketer, and waitress. (PageID 48).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.(Page ID 49-65).
2. The claimant has not engaged in substantial gainful activity since January 31, 2007, the alleged disability onset date (20 CFR 404.1571, et seq).
3. The claimant has the following severe impairments: asthma, (mild) degenerative disc disease of the lumbar spine, obesity, borderline personality disorder, anxiety disorder, affective disorder (recurrent major depression versus bipolar disorder), schizoaffective disorder, attention deficit hyperactivity disorder (ADHD), history of drug and alcohol abuse/dependence (20 CFR 404.1520(c))).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. The claimant has the residual functional capacity to perform light work as defined at 20 CFR 404.1567(b) subject to the following additional limitations: the opportunity to alternate between sitting and standing at 30-minute intervals throughout the workday; no more than frequent operation of foot controls with the left lower extremity; no climbing of ladders, ropes, or scaffolding; no more than occasional climbing of ramps or stairs; no more than frequent balancing; no more than moderate exposure to extreme cold, extreme heat, wetness, or humidity; no more than moderate exposure to environmental irritants such as fumes, odors, gases, duty, and poorly ventilated areas; no exposure to hazardous machinery or unprotected heights; only simple, routine and repetitive tasks; a work environment free of fast-paced production requirements; duties requiring only simple work-related decisions; few, if any, work-place changes; no interaction with the public; no interaction with co-
workers; no more than occasional "over-the-shoulder" supervision; no tasks requiring complex written or verbal communication.
6. The claimant is unable to perform past relevant work (20 CFR 404.1565).
7. The claimant was born on September 11, 1978. At age 32 the claimant is classified as a "younger individual" for Social Security purposes (20 CFR 404.1563).
8. The claimant has an eleventh grade or "limited" education as defined for Social Security purposes (20 CFR 404.1564).
9. The claimant does not have "transferable" work skills within the meaning of the Social Security Act (20 CFR 404.1568).
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)).
11. The claimant was not disabled, as defined in the Social Security Act, from January 31, 2007, through the date of this decision (20 CFR 404.1520(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was, therefore, not entitled to DIB. (PageID 65).
On appeal, Plaintiff argues that the ALJ erred in improperly evaluating the medical sources.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Claimant's Testimony and background
Plaintiff testified that she has been unable to maintain a job in the past because she has trouble concentrating and coping with stress. (PageID 93). Working raised her anxiety levels and worsened her symptoms, such as auditory hallucinations. (PageID 93, 96-97). Plaintiff lives with her disabled boyfriend. (PageID 48). She has four children who range in age from ten years old to fifteen years old. (Id.) Her children were removed from her custody because she was arrested for child endangerment when her former husband was found selling drugs from the home. (Id.) She last saw her children about 4-5 months before the hearing. (Id.)
For treatment, Plaintiff sees a psychiatrist once a month and a counselor once every one or two weeks. (PageID 97, 98, 115). She is also prescribed medication for her psychological impairments, which she takes three times a day. (Id.) Her medications cause drowsiness and slurred speech. (PageID 115).
Plaintiff also described problems with bipolar disorder. She described manic periods where she cannot sit still, is hyperactive, and shops impulsively. (PageID 98, 110, 111). Plaintiff also has depressed periods where she spends all day in bed and has crying spells. (PageID 98). She also has panic attacks, her anxiety makes her shake, and she has racing thoughts. (PageID 99, 100). Plaintiff claims she has suicidal thoughts on a weekly basis and has attempted suicide. (PageID 100, 111-113).
Plaintiff's memory and concentration are also impaired. She struggled to remember her work history at the hearing. (PageID 80, 81). She was taking GED classes, and in an hour and a half would have to get up and move around three times. (PageID 102). Additionally, she was struggling in her classes and required personal help from her teacher. (Id.) Plaintiff used to enjoy reading, but struggles to maintain focus to read even a chapter. (PageID 105). She struggles with even remembering to take her medications, and Mental Health Services has to send a bus to pick her up every day so that she will take her medications. (PageID 109-110).
2. Medical Expert Testimony
Dr. Lenny Kravitz, Psy.D, a licensed clinical psychologist, was designated by the ALJ as the psychological expert for this case. (PageID 141-42). His testimony was based on his education, experience, and training, as well as his review of the record. (PageID 142). He testified that the record he reviewed was "extensive." (PageID 139). He noted Plaintiff has been diagnosed with schizo-affective disorder, borderline personality disorder, and ADHD. (PageID 142, 147). Dr. Kravitz observed that although Plaintiff's mental health treatment was intensive, she unfortunately did not appear to be benefitting consistently from it. (PageID 145). He referenced several notable clinical findings, such as circumstantial and tangential thought processes, dramatic presentation, impulsive behavior, and chronic paranoia. (PageID 143-45).
Dr. Kravitz concluded that Plaintiff had a "severely restricted" residual functioning capacity. (PageID 138). He unambiguously testified that he did not find Plaintiff capable of handling the demands of a competitive work environment or handling even ordinary levels of stress on a consistent basis. (PageID 145).
3. Medical Evidence of Record
The record contains documentation from many emergency room visits. Plaintiff went to the emergency room more than fifteen times over the course of two years for headaches. (PageID 441-99, 530-33, 551-62, 561-70, 573-77, 624-25, 673-74, 745-46). She went to the emergency room several other times for other reasons, including back pain, chest pain and abdominal pain. (PageID 378-440, 449-52, 468-71, 496-97, 500-06, 563-64, 730-41, 800-19).
Plaintiff has also been hospitalized for her mental impairments. She attempted suicide twice and was admitted to the hospital for suicidal ideation an additional twelve times. (PageID 472-87, 512-11, 518-529, 690- 706, 712-29, 742-44, 751-61, 862-64, 890-98). She was also hospitalized for other psychological problems on three other occasions. (PageID 679-83, 686-87, 690-97).
After treating Plaintiff for over a year, Dr. Chan opined that she was "unable to function under normal work conditions" in April 2008. (PageID 581-83). He noted that she had panic attacks, heard voices, had limited ability to maintain attention and concentration, and had limited insight and judgment. (Id.) Her therapist also reported that Plaintiff would be unable to work. (PageID 584-85). Dr. Chan and her case manager each reported similar findings in July 2008, each again opining that Plaintiff could not work. (PageID 628-32). Dr. Chan reported to the Department of Job and Family Services that Plaintiff was extremely limited in her ability to complete a normal workday and workweek and in several other abilities, in addition to twelve marked limited abilities. Dr. Chan also opined that Plaintiff was unemployable. (PageID 683-84).
Plaintiff's mental health progress notes were submitted. (PageID 763-96, 820-35, 932-51). These persistently note Plaintiff was having racing thoughts, feelings of helplessness and hopelessness, limited insight, decreased ability to focus, mood swings, decreased appetite, and sleep disturbances, despite treatment. (Id.) She frequently presented as dramatic, anxious, and irritable. (Id.) These records frequently note suicidal ideation, auditory hallucinations, and self-mutilation. (Id.)
Dr. Schulz examined Plaintiff for the Bureau of Disability Determination on April 21, 2008. (PageID 589-95). He diagnosed schizoaffective disorder and assigned Plaintiff a GAF score of 50. (Id.) He also noted Plaintiff's ability to withstand the stress and pressure associated with day-to-day work activities is moderately to severely limited. (Id.)
The Global Assessment of Functioning ("GAF") is a numeric scale (0 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. A score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).
B.
Plaintiff alleges that the ALJ erred in improperly evaluating medical sources. Specifically, Plaintiff argues that the ALJ improperly evaluated the opinions of both the testifying expert, Dr. Larry Kravitz, and Plaintiff's treating psychiatrist, Dr. Yiu-Chung Chan.
The medical opinion of a treating source is entitled to great weight only if it is based on objective medical evidence and not contradicted by substantial evidence. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, the Commissioner "is not bound by the treating physician's opinions, and that such opinions receive great weight only if they are supported by sufficient clinical findings and are consistent with the evidence." Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 652 (6th Cir. 2006). See also 20 C.F.R. § 404.1527(c)(4), 416.927(c)(4) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give that opinion.").
Plaintiff contends that the ALJ ignored Dr. Kravitz's conclusion that Plaintiff did not have the capacity to sustain work. However, the ALJ addressed Dr. Kravitz's opinion at length, finding that the opinion was less than credible. (PageID 60). Moreover, the limitations the ALJ assigned to Plaintiff's RFC addressed Dr. Kravitz's concerns. Specifically, Dr. Kravitz found restrictions in activities of daily living, social functioning and concentration, persistence, and pace. (PageID 143). Accordingly, the ALJ found that Plaintiff's RFC was limited to "simple, routine and repetitive tasks; a work environment free of fast-paced production requirements; duties requiring only simple, work-related decisions; few, if any, work-place changes; no interaction with the public; no interaction with co-workers; no more than occasional 'over-the shoulder' supervision; [and] no tasks requiring complex written or verbal communication." (PageID 57). As the ALJ expressly stated in his decision, the "functional capacity issues raised by [Dr. Kravitz] have been taken into account when assessing claimant's residual functional capacity." (PageID 62-63). While the ALJ did not adopt Dr. Kravitz's ultimate conclusion that Plaintiff could not work, the ALJ most certainly took Dr. Kravitz's opinions into account.
The ALJ did erroneously state that Dr. Kravitz's opinion was inconsistent with that of Plaintiff's psychiatrist, Dr. Chan, who actually shared Dr. Kravitz's opinion that Plaintiff could not work in competitive employment. (PageID 60). However, the Commissioner argues, and the Court agrees, that the inclusion of Dr. Kravitz in the list of doctors who refuted Dr. Chan's conclusions was a scrivener's error. As evidenced by the ALJ's twice noting Dr. Kravitz's conclusion that Plaintiff could not cope with a competitive work environment, and then explaining that the conclusion was less than credible, the ALJ was well aware that Dr. Kravitz's ultimate conclusion was in-line with Dr. Chan's. (PageID 54, 58, 60).
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Furthermore, the ALJ was not obligated to give Dr. Kravitz's conclusion greater weight. Opinions offered by a medical source regarding whether the individual is disabled or not is an administrative finding dispositive of a case and hence reserved for the Commissioner. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). See also Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007) (stating that "no special significance will be given to opinions of disability, even if they come from a treating physician"). Here, the ALJ contrasted Dr. Kravitz's conclusion that Plaintiff could not work with the findings of Dr. Schulz, the psychologist who twice examined Plaintiff in person. (PageID 60).
Dr. Schulz found only mild to moderate impairments in Plaintiff's mental functioning. (PageID 52, 589-95, 855-61). On Plaintiff's first examination with Dr. Schultz, her affect was appropriate, she was fully oriented, and there was no evidence of mental confusion or lack of awareness. (PageID 52, 591-93). At Dr. Schulz's second examination, his findings were "essentially consistent with his earlier findings (although indicative of somewhat better functioning)." (PageID 53). Dr. Schulz's opinions provided an adequate reason for the ALJ to give less weight to Dr. Kravitz. (PageID 60).
Plaintiff's reliance on Dr. Chan is based almost entirely on notes he wrote on prescription pads in December 2007 and September 2008, stating that Plaintiff could not work. (PageID 572, 671). In February 2009, Dr. Chan completed a Mental Functional Capacity Assessment in which he checked a box indicating that Plaintiff was unemployable. (PageID 684-85). Dr. Chan left completely blank the space on the Mental Functional Capacity Assessment asking what observations and medical evidence support his findings. (PageID 685). In June 2010, Dr. Chan completed a Psychiatric Review Technique Form in which he found that Plaintiff had marked or extreme functional limitations. (PageID 844). Dr. Chan left blank the space on the form for writing Plaintiff's "pertinent signs, symptoms, findings, functional limitations, and the effects of treatment." (PageID 838). The ALJ discredited Dr. Chan because his conclusion was "inconsistent with the weight of the objective medical record as well as the opinions of other mental health professionals" such as Dr. Schultz. (PageID 60).
Plaintiff further argues that the medical sources who found she could work "only reviewed records" and "never personally interacted" with her. However, while state-agency consultants Drs. Casterline and Goldsmith reviewed Plaintiffs' records, Dr. Schulz saw Plaintiff in person, on more than one occasion. (PageID 589-95, 855-61). Plaintiff also argues that Dr. Schulz (and Drs. Casterline and Goldsmith) were not able to review records submitted after they conducted their analyses. However, Plaintiff does not identify these alleged records and fails to explain how these records would have effected the conclusions of Drs. Casterline, Goldsmith, and Schultz.
The ALJ also gave Dr. Chan's opinion "little weight" because he "provided no explanation" for his conclusion that Plaintiff could not work. (PageID 60). The ALJ found that Dr. Chan's findings that Plaintiff had "marked" and "extreme" mental limitations were "unsupported by substantial convincing evidence and cannot be accepted as credible." (PageID 60). The ALJ's reliance on Dr. Chan's failure to support his opinions is a good reason to discredit Dr. Chan pursuant to 20 C.F.R. Section 404.1527(c)(2) (requiring the ALJ to give good reasons to support their decision for failing to give a treating physician controlling weight). Plaintiff does identify a Mental Status Questionnaire that Dr. Chan completed in April 2008, in which Dr. Chan provides a little more information on Plaintiff's condition, noting things such as panic attacks, depressed mood, poor concentration, limited insight, and judgment. (PageID 581-83). However, this questionnaire does not conclude, like Dr. Chan's other opinions, that Plaintiff cannot work. Rather, Dr. Chan states that "past behavior indicates that she is unable to function under normal work conditions." (PageID 582). Accordingly, it was proper for the ALJ to afford Dr. Chan's opinion less weight. 20 C.F.R. § 404.1527(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion.").
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. Raisor v. Schweiker, 540 F. Supp. 686 (S.D. Ohio 1982). Substantial evidence supports the ALJ's finding that
Plaintiff could perform a limited range of light work and therefore was not disabled. The issue is not whether the record could support a finding of disability, but rather whether the ALJ's decision is supported by substantial evidence. Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993).
III.
For the foregoing reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Delisa Cosby was not entitled to disability insurance benefits, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED; and, as no further matters remain pending for the Court's review, the Clerk shall enter judgment accordingly, and this case is CLOSED in this court.
______________________
Timothy S. Black
United States District Judge