Opinion
No. 02-2046 G/Bre
August 22, 2002
REPORT AND RECOMMENDATION
The plaintiff, Gregory Gruthoff, appeals from a decision of the Commissioner of Social Security denying his application for disability and supplemental security insurance benefits. The appeal has been referred to the undersigned for report and recommendation.
PROCEDURAL HISTORY
Gruthoff filed his applications for disability and supplemental security insurance benefits on September 2, 1999 alleging disability having an onset date of June 15, 1995. (Transcript at pages 113-14, 433-35, hereafter "TR ___") The applications were denied initially (TR 78-80, 93A-93E, 436-43) and upon reconsideration (TR 81-83, 98-99, 444-48). The plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was conducted before ALJ Anthony Fava on February 16, 2001. (TR 42-74) Gruthoff, who was represented by counsel, appeared and testified. The ALJ also heard the testimony of Dr. C. Greg Cates, a vocational expert. The ALJ denied plaintiffs application in a decision dated June 21, 2001. (TR 22-33) The ALJ's determination became the final decision of the Secretary when the Appeals Council denied Gruthoffs request for review on November 27, 2001. (TR 6-7) Plaintiff filed this action seeking review of the final decision of the Secretary pursuant to 42 U.S.C. § 405 (g). In his brief, the claimant argues the ALJ erred in posing an inaccurate hypothetical question to the vocational expert ("VE") at the administrative hearing. The ALJ then relied on the VE's response to the inaccurate hypothetical in concluding the claimant could perform a significant number of jobs in the national economy. Thus, plaintiff contends, the decision of the ALJ was not supported by substantial evidence.
THE FIVE-STEP EVALUATION
A multi-step evaluation set forth in the Social Security Regulations (the "Regulations") is utilized to determine whether a claimant is entitled to social security benefits. 20 C.F.R. § 404.1520 (a), 416.920(a) (2002). If it is found at any step in the analysis tat the claimant is not disabled, the claim is not reviewed further. 20 C.F.R. § 404.1520 (a), 416.920(a) (2002). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R. § 404.1520 (b), 416.920(b) (2002). Second, he must suffer from a severe physical or mental impairment. 20 C.F.R. § 404.1520 (c), 416.920(c) (2002). The ALJ must at the third step determine whether the claimant has an impairment that meets or equals the criteria contained in the Regulations' listing of impairments set out in appendix 1 thereto. 20 C.F.R. § 404.1520 (d), 416.920(d) (2002), If a claimant's impairment meets or equals a listing, he is found disabled. 20 C.F.R. § 404.1520 (d), 416.920(d) (2002). In the event the ALJ decides that a listed impairment has not been met or equaled, he must then move to the fourth step in the analysis and consider the claimant's residual functional capacity and the physical and mental demands of his past relevant work. 20 C.F.R. § 404.1520 (e), 416.920(e) (2002). If the claimant is still capable of performing his past work, he is not disabled. 20 C.F.R. § 404.1520 (e), 416.920(e) (2002). Upon a determination that the claimant cannot engage in his past relevant work, the ALJ must advance to the fifth and final step of the evaluation and analyze whether the claimant can perform other work. 20 C.F.R. § 404.1520 (f), 416.920(f) (2002). In doing so, he is to consider residual functional capacity along with vocational factors including age, education and past work experience. 20 C.F.R. § 404.1520 (f), 416.920(f) (2002). At this stage, the ALJ may employ the Medical-Vocational Guidelines in reaching his determination. Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990). If the ALJ concludes that there is no other work the claimant can perform, he is found to be disabled. 20 C.F.R. § 404.1520 (f), 416.920(f) (2002). The burden of proof lies with the claimant at steps one through four and shifts to the Commissioner at step five. Her v. Commissioner of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).
"Residual functional capacity" is defined in the Regulations as "the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs" 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c) (2002).
THE ALJ'S DECISION
After considering the medical record and the testimony, the ALJ determined that Gruthoff was not under a disability as defined in the Social Security Act (the "Act"). (TR 35) Utilizing the multi-step evaluation process set forth in the Regulations, the ALJ made the following findings:
1. There is no basis in the evidence for reopening the prior final and binding determinations issued December 28, 1998, and January 4, 1999. Accordingly, the period of disability as it relates to the previously adjudicated period is dismissed under 20 C.F.R. § 404.988 416.1488.
2. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
3. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
4. The claimant has an impairment or a combination of impairments considered "severe" based on the requirements in the Regulations 20 C.F.R. § 404.1520 (b) and 416.920(b).
5. This medically determinable impairment does not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
6. The undersigned finds that the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.
7. The undersigned has carefully considered all of the medical opinions on the record regarding the severity of the claimant's impairments ( 20 C.F.R. § 404.1527 and 416.927).
8. The claimant has the following residual functional capacity: routine, repetitive work requiring no skills, low stress, and working alone.
9. The claimant is unable to perform any of his past relevant work ( 20 C.F.R. § 404.1565 and 416.965).
10. The claimant is a "younger individual between the ages of 18 and 44" ( 20 C.F.R. § 404.1563 and 416.963).
11. The claimant has "a limited education." ( 20 C.F.R. § 404.1564 and 416.964).
12. The claimant has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case ( 20 C.F.R. § 404.1568 and 416.968).
13. The claimant has the residual functional capacity to perform a significant range of heavy work ( 20 C.F.R. § 416.967).
14. Although the claimant's exertional limitations do not allow him to perform the full range of heavy work, using Medical-Vocational Rule 204.00 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work as custodian with 600 jobs locally and 2,000,000 nationwide, lawn maintenance with 500 jobs locally and 1,500,000 nationwide; assembler with 300 jobs locally and 750,000 nationwide; light machine tender with 200 jobs locally and 50,000 nationwide; light office cleaner with 200 jobs locally and 50,000 nationwide; light inspector with 200 jobs locally and 50,000 nationwide; and bundler in the garment industry with 100 jobs locally and 20,000 nationwide.
15. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520 (f) and 416.920(f)).
STANDARD OF REVIEW
Judicial review of the Secretary's decisions is limited to determining whether the Secretary's findings are supported by substantial evidence and whether the Secretary employed the proper legal standards. Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [The] court does not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.
In determining the existence of substantial evidence, [the] court must examine the administrative record as a whole. If the Secretary's decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion.Cutlip v. Secretary of Health Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted).
THE PLAINTIFF'S CONDITION
As the instant appeal focuses exclusively on the claimant's mental impairments, the court will summarize only those portions of the voluminous transcript dealing with treatment of his mental illness. Plaintiff had been seen periodically from 1989 through 1997 by psychiatrist Kenneth Ennis, M.D. for depression. Gruthoff complained of panic attacks and anxiety and was often dysphoric. He was treated with medication and, by 1997, reported that he was doing well. (TR 217-25)
According to a discharge summary from Methodist Hospital in Germantown, Tennessee, the claimant presented to the emergency room on June 19, 1999 in a state of confusion, reporting that he had been in jail for three days and had not been taking his medication, which included psychotropics. (TR 253) He was found to have hyponatrenta, a deficiency of sodium in the blood, and was admitted for treatment. (TR 253) Examination the following day revealed that the plaintiff was alert and oriented to person, place, and time. (TR 255) After being medically stabilized, Gruthoff was admitted to the psychiatric intensive care unit at Methodist Hospital in Memphis in the early hours of June 22. In a mental status examination conducted by Dr. Ennis, the plaintiff was described as hypoverbal, dysphoric and anxious with no overt delusions, hallucinations or current thoughts of self-harm. He was placed on 15 minute checks and prescribed Klonopin, Trazodone, Atenolol and Clonidine. Plaintiff was followed in group therapy and a psychosocial assessment was completed by psychiatric services. Upon discharge on June 28, 1999, Gruthoff was "in denial with minimal insight" and "less depressed and his mood was brighter." He was diagnosed with depression and personality disorder. (TR 274-75) A long history of panic attacks, anxiety and dysphoria was noted. (TR 274)
On July 8, 1999, Gruthoff was evaluated at J. B. Summer Counseling Center in Somerville, Tennessee. He reported nervousness, fear of crowds, irritation with noise, worry about charges against him for child pornography, and depression arising from estrangement from his wife and children. The examiner noted fair grooming, no evidence of psychomotor retardation or agitation, normal speech pattern, orientation times four, blunted affect, absence of suicidal or homicidal thoughts, slight impairment of judgment and low average intelligence. Thought processes appeared to be within normal range and the claimant denied hallucinations or delusions. He was diagnosed with adjustment disorder with anxiety, depression and personality disorder. Individual therapy was recommended. (TR 334-36)
On October 12, 1999, the plaintiff underwent a consultative psychological examination performed by Duff Wright, Ph.D. The examiner observed that Gruthoff, in spite of using his best efforts, had difficulty concentrating and recalling details of his background, including his date of birth. The plaintiff reported he had suffered from panic attacks for several years and experienced crying spells, difficulty with remembering things, sleep and appetite disturbances, and depression. He stated that he occasionally became short of breath and felt frightened. Gruthoff completed the tenth grade and attended resource classes. The claimant's mother and siblings suffered from unspecified nerve disorders. He had been arrested for sexual battery some three months previously and had left a 13-year job as a service station attendant after suffering a nervous breakdown. His last employment was five years prior to the examination at an auto parts store, from which he was dismissed due to stress and having a panic attack on the job. Gruthoff had not attempted to work since that time.
The claimant admitted problems with his "nerves." He felt uncomfortable and anxious around others and often had panic attacks, which included autonomic hyperactivity, motor tension, shortness of breath and apprehension. He reported having a "dark cloud" or a "dark shadow" over him and experiencing crying spells almost daily. Gruthoff also suffered from mood swings, forgetfulness, feelings that no one cared for him, loneliness, helplessness and hopelessness. Seizures, suicidal and homicidal ideations, hallucinations and paranoia were denied, although he admitted sometimes taking things the wrong way. Prior to the June 1999 breakdown for which he was hospitalized, Gruthoff cited two previous nervous breakdowns for which he did not seek inpatient treatment.
In addition, the examiner found fair to poor level of initiate, effectiveness and independence. The claimant lived with his mother and did few household chores, little shopping, and did not keep up with current events, although he stated that he watched the weather station on television. On good days, he arose between 7:00 and 8:00 a.m.; made his bed; visited with his mother, who stayed at home during the day; did nothing in the afternoons or drove alone along country roads; and watched television in the evenings. The claimant got along well with his family, had one friend who he saw on weekdays, and preferred to be stay to himself. He rarely talked with the neighbors and hoped to get back in church, but felt as if others judged him concerning the sexual battery incident. Although he took medication, it did not seem to help.
Good grooming and hygiene; minimal eye contact; an average rate in performing tasks; anxiousness, discomfort, and near fearfulness toward the examiner; timidity; adequate initiative in testing procedures; generally good cooperation level; quite poor expressive ability; expressive and receptive language deficits; easy distractabiity; poor concentration and focus; lack of self confidence; and a tendency to admit defeat quickly when difficulty was encountered were noted. The claimant showed ease in changing from one task to another and adequate reaction to praise and encouragement. Speech was normal in tone and volume, with normal rate and fair enunciation. Thought content was coherent but nonspontaneous. There was no evidence of loose associations. Affect was guarded and anxious. He was alert and oriented to person and date with a fair to poor grasp in understanding test instructions, poor recall of history, and poor level of abstraction. Short term memory ability and concentration skills were below average. On a mini-mental status examination, the plaintiff scored 21 out of 30, being unable to identify the season or the examiner's name and address, perform serial sevens or spell five-letter words backward, interpret proverbs beyond simple terms, find similarities between several pairs of words or name a President of the United States since 1950 or the author of Hamlet.
It was the conclusion of Dr. Wright that plaintiff appeared to be a "very fragile individual and would not be able to tolerate a great deal of stress." Further, he appeared "to have difficulties in reading and writing which would also limit working capacities." He was "able to understand and remember and appears to be able of [sic] understanding simplistic instructions, but his follow through of such an intention and purpose of what he is doing is significantly impaired at this time due to anxiety and depression." Due to emotional disturbances, the examiner opined, the plaintiff would "be especially sensitive to any type of criticism from co-workers and supervisors and did not appear to be able to handle normal work pressures." Dr. Wright also indicated that Gruthoffs adaptive living skills appeared to be adequate only in a familiar and structured environment, noting however that he had been able to take care of his own needs in the past. (TR 317-23)
A psychiatric review was performed for the purpose of processing the plaintiffs Social Security claim on October 20, 1999. No organic mental disorders, psychosis, mental retardation, somatoform disorders or substance abuse were detected. Disturbance of mood with some depression along with anxiety with some panic episodes were noted. The reviewer also indicated inflexible and maladaptive personality traits which caused significant impairment in social or occupational functioning and subjective distress. The plaintiffs impairments, according to the reviewer, resulted in slight restriction of activities of daily living; moderate difficulties in maintaining social functioning; deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner often; and once or twice causing episodes of deterioration or decompensation in work or work-like settings resulting in withdrawal from that situation or exacerbation of signs and symptoms. None of the functional limitations observed were manifested to such a degree as to satisfy, in the examiner's view, any of the Regulation's listings. Symptoms resulting in a complete inability to function independently outside the home were absent. (TR 346-54)
A mental residual functional capacity assessment show moderate limitations in the areas of understanding and remembering detailed instructions, carrying out detailed instructions, maintaining attention and concentration for extended periods, working in coordination with or proximity to others without being distracted by them, completing normal work periods without interruption from symptoms, interacting appropriately with the general public, accepting instructions and responding appropriately to criticism from superiors and responding appropriately to changes in the work setting. (TR 359-62)
On October 27, 1999, a psychiatric evaluation was performed by Anne Utley, M.D., who noted in her report that Gruthoff had received psychiatric treatment from Dr. Ennis for 13 years but had been referred to her after Ennis stopped accepting TennCare patients. During the preceding month, the claimant had suffered increased panic attacks that occurred every other day. He was nervous most of the time, shook, and cried. He found his medication to not be beneficial. The plaintiff reported poor concentration, difficulty getting out of bed, lack of energy and loss of appetite but denied psychotic symptoms, suicidal thoughts, paranoia or hallucinations. Dr. Utley described the claimant as clean, poorly kept, alert and oriented times three with depressed mood, quite constricted and tearful affect and fragmented thinking. Cognitive function, memory, attention, concentration and judgment were impaired. Gruthoff was diagnosed with major depression and panic disorder. The plaintiffs global assessment functioning (GAF) score was estimated at 55 currently and 70 in the past year. (TR 331-33) She continued treatment, prescribing new medication on November 24, 1999, to which response was reported as better. (TR 329-30)
A physical examination performed at the request of the state disability agency on November 3, 1999 by Kenneth Harris, M.D. revealed no functional limitations. Plaintiff was at that time described as alert and oriented times three and in no apparent distress. (TR 324-25)
A second Social Security psychiatric review was conducted on February 15, 2000 revealing an absence of organic mental disorders, psychosis, somatoform disorders, personality disorders, substance abuse or mental retardation. Disturbance of mood was observed with anhedonia, decreased energy, feelings of guilt or worthlessness and difficulty concentrating or thinking. Neither manic nor bipolar syndrome were detected. Anxiety was recognized with recurrent severe panic attacks manifested by sudden unpredictable onset of intense apprehension, fear, terror and a sense of impending doom occurring at least once per week. The examiner opined that the plaintiffs impairments resulted in a slight restriction on activities of daily living and difficulties in maintaining social functioning; caused deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner often; and once or twice resulted in episodes of deterioration or decompensation in work or work-like settings which caused him to withdraw from that situation or to experience exacerbation of signs and symptoms. Again, none of the functional limitations observed rose to the level of the Regulation's listings according to the examiner. (TR 337-45)
In a mental residual functional capacity assessment completed at the same time, it was found that the plaintiff was markedly limited in his abilities to understand and remember detailed instructions, carry out detailed instructions and interact appropriately with the general public. The abilities to maintain attention and concentration for extended periods of time, complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, and respond appropriately to changes in the work setting were moderately limited. The handwritten notes of the reviewer at the conclusion of the assessment indicated the claimant was unable to perform detailed tasks and was unable to relate to the public. (TR 355-58).
Psychiatric notes from March through November of 2000 revealed insomnia, panic attacks, bland mood, unkempt appearance and alert sensorium, as well as requests for more medication in March. In June 2000, the plaintiff was nervous and oriented times three with flat mood and poor insight. New medication was prescribed. In September, Gruthoff reported hearing his name being called. A month later, he was unkempt and oriented times four with clear but slow thought process and good judgment. In November 2000 he again reported hearing the voices of his children calling him. (TR 404-08)
In a medical assessment completed by Dr. Ennis on November 27, 2000, the psychiatrist opined that the claimant's abilities to follow work rules, relate to co-workers, deal and use judgment with the public, interact wit supervisors, deal with work stresses, function independently, maintain attention and concentration, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability were poor or non-existent. Ability to maintain personal appearance was fair. Dr. Ennis characterized judgment as impaired secondary to mental illness and developmental disabilities. Memory and impulse control were poor and thought processes compromised. (TR 400-02)
In a psychiatric evaluation report dated November 30, 2000, Dr. Ennis stated that he had treated the plaintiff intermittently since 1989 and that Gruthoff had been seen at a mental health center since 1997. He also reported following the claimant's progress during his hospitalization in 1999, when he was treated with Trazadone and Klonipin. The psychiatrist indicated that plaintiff had a GAF score of 40, affective disorder with depressive syndrome, marked difficulties in maintaining social functioning, task performance and concentration with repeated episodes of deterioration and decompensation in work-like settings. Dr. Ennis also noted restriction of the daily living activities of paying bills, planning daily activities and initiating and participating in independent activities. (TR 388-93)
That same date, a questionnaire on the claimant's residual functional capacity was prepared by Dr. Ennis in which he described the plaintiff as having severe and frequent depression and inappropriate affect, moderate and severe illogical association of ideas and moderate psychomotor disturbances. He further noted Gruthoff was unable to make appropriate judgments, had poor impulse control, was markedly restricted in his ability to relate to others, was mildly to markedly restricted in his functioning with daily activities, might not be able to carry out or follow through on important personal tasks to meet his needs, was unable to focus and remain on task, was mildly to markedly restricted in his ability to care for personal needs and was prevented by his mental illness from going to a job on a daily basis. The psychiatrist opined that it was possible the claimant's thought process might be grossly impaired and that when impaired his ability to control himself or think and act rationally was compromised. Moreover, decompensation did not occur in a fixed pattern. Gruthoffs impairment, Dr. Ennis concluded, prevented him from rational function. (TR 394-98)
On December 12, 2000, plaintiff was admitted to the Memphis Mental Health Institute for a forensic evaluation. Gruthoff reported poor appetite and sleep disturbances. He stated that he had three nervous breakdowns about 13 years previously. By way of family history, the plaintiff informed the examiner that his mother had suffered a nervous breakdown and was at Western State, one brother was an alcoholic, and another brother was hospitalized at Charter Lakeside, a psychiatric hospital in Memphis, Tennessee. On admission, the plaintiffs GAF was estimated at 50.
The court assumes this is a reference to Western Mental Health Institute, a psychiatric hospital in Western Institute, Tennessee.
A psychiatric assessment indicated soft, regular speech with poor eye contact; no loosening of associations or flight of ideas; episodes of hearing his children's voices after they were taken from him as a result of the sexual battery charges; no delusions; depressed mood with tearfulness when speaking of his children; sad affect; clear sensorium; orientation times three; fair concentration; intact short term memory; fair long term memory; below average intelligence; inability to abstract and poor insight and judgment. (TR 366-69) Progress notes following admission revealed improvement upon treatment. During hospitalization, Gruthoff reported no complaints, slept well, suffered no side effects from medications and attended group therapy sessions. At one point, medications were increased which resulted in his feeling better. He continued to progress, reporting better sleep and appetite, and was discharged on January 9, 2001. (TR 370-87)
At the hearing, the plaintiff testified that he attended special education classes in school and completed the ninth grade. (TR 47) He reported frequent panic attacks during which he became short of breath, very nervous and tearful. (TR 50) The attacks were assuaged to some degree by medication. (TR 50-51) The plaintiff stated that he was under the care of the I. B. Summers Center for three or four years and Dr. Ennis for five or six years. (TR 57-58) When Dr. Ennis could no longer treat him for financial reasons, he was referred to the Summers Center. (TR 58) Plaintiff described his condition as improved during the course of his treatment, noting that his nervousness had lessened with increased medication. (TR 58) Gruthoff stated that he did not feel that he could work because he could not handle everyday stress. (TR 59-60) He recalled becoming confused when doing household chores for his mother, with whom he lived; having to be reminded to bathe; and being too nervous even to make himself a sandwich. (TR 60) He reported three nervous breakdowns, the first of which occurred when he "just snapped" while working at a gasoline station. His relationship with Dr. Ennis began at about this time. (TR 62-63) The second was contemporaneous with his separation from his wife and the third took place during his employment with the city of Galloway, Tennessee. (TR 62-63)
At the hearing, the ALJ presented the following three hypotheticals to the VE:
Q . . . Assume a claimant the same age, education, occupation, and experience. Further assume full credibility to testimony you've heard today, would such a claimant be able to perform any of his past relevant work?
A No sir.
Q And what are the vocationally-limiting aspects of the testimony?
A The basically the panic attacks and inability to handle any type of stress.
Q Okay. Again, if you assume full credibility to the testimony, would he be able to do any type of work?
A No, sir.
Q The second hypothetical. Assume a claimant the same age, education, and occupational experience. Further assume I find that such a claimant is capable of lifting 70 pounds, 50 to 75 pounds occasionally. Assume that he would need to work in a low-stress job and that he would — there would have to be routine, repetitive work or a job that did not require any type of skills, shall we say, and possibly work in relative isolation, would there be jobs available in the national and local economy for such a claimant? If so, what are they and how many?
A Yes, sir. There are many of the custodial or janitorial type positions in that classification. Work in the lawn maintenance. Some of the manufacturing or assembly type positions could fit this. And I think those are pretty representative.
Q Okay. Could you give us some numbers on those, please, sir?
A In the 75-mile radius of this office custodian and janitor jobs there's probably 600 of those. Lawn maintenance or gardening type positions, there would be approximately 500. Manufacturing would meet this classification, there's probably 300.
Q Okay. What about in the national?
A Nationally custodial janitors there's in excess of two million, lawn maintenance there is in excess of a million-and-a-half. Manufacturing there's in excess of 750,000.
Q Okay. Now, the third hypothetical. Again, assume the same claimant, the same hypothetical claimant. Further assume that I find that such a claimant's capable of light work and assume, again, the restrictions of a low-stress job, routine, repetitive type work, would there be jobs available in that category for such a claimant?
A Yes, sir. Positions such as machine tender. And, again, there are some of the custodial or office cleaner positions. Inspector type positions. There are multiple positions in the garment industry that would — you know, bundler type positions. Machine tender positions in the local economy there's approximately 200 of those. Nationally there are approximately 50,000. The light custodial positions, there's probably 200 locally and 50,000 nationally. The inspector type positions, very similar numbers, approximately 200 locally, 50,000 nationally. And the bundler type positions or in the garment industry, the labor positions, would be approximately 100 and then 20,000 nationally.
(TR 66-68) Under cross-examination by plaintiffs counsel, the VE testified that a GAF score of below 50 would result in significant difficulties in a work environment that would ultimately lead to termination. Based on Dr. Ennis' report, counsel asked the VE whether a person having marked difficulties with maintaining social functioning, concentration, independent functioning and persistence, as well as difficulties in completing tasks in a timely manner and assuming increased mental demands of competitive work, would be able to maintain any type of employment, to which the VE responded in the negative. The VE also opined that a person having the restrictions set forth in the medical assessment completed by Dr. Ennis would be unable to maintain employment, observing that such a person would have "no abilities to function." (TR 68-70) With respect to Dr. Wright's report, which he found to be less restrictive but consistent with that of Dr. Ennis, the VE stated that a person exhibiting the limitations referred to therein would be a "very marginal employee at best." (TR 71) He further acknowledged that, if a hypothetical was proposed based upon the information included in Dr. Wright's report, the claimant would be found incapable of employment. (TR 72)
Based on the evidence presented, it was the conclusion of the ALJ that, while the claimant indeed suffered from depression, the weight of the evidence persuaded him that Gruthoff could perform routine, repetitive work requiring no skills, low stress and working alone. (TR 27) The ALJ found that the November 2000 opinion of Dr. Ennis was not to be afforded controlling weight, as the opinion was issued over a year after the claimant was last examined and was inconsistent with the physician's final treatment notes, which indicated relative stability and continuation of medications. The ALJ further noted that, while Dr. Ennis' November opinion suggested Gruthoff was fairly nonfunctioning, there was nothing in his treatment notes to indicate the plaintiff required assistance, case management or significant intervention in order to perform work-related tasks or daily activities. By comparison, Dr. Utley's notes suggested a GAF of 55, indicative of some ability to work, and fair progress with medication. (TR 28) Even upon hospitalization for a forensic evaluation in 2000, GAF was estimated at 50 at the time of admission and plaintiffs condition improved with treatment. Moreover, the evaluations of Utley, Wright and the Midtown Mental Health Institute all suggested only moderate difficulties in maintaining social functioning and maintaining concentration, persistence and pace. The ALJ further noted that psychological examination revealed the claimant could follow simple instructions and was capable of taking medication as prescribed, caring for his disabled mother, attending to personal hygiene, shopping, performing household chores and driving himself. He was also easily distracted and irritated, and reactive to even mild criticism. Although the claimant told the consultative examiner he did not do much during the day, it was the examiner's opinion that his inactivity was due more to lack of initiative than inability. Therefore, the ALJ concluded Gruthoff was capable of performing restricted routine, repetitive work. His subjective complaints concerning inability to concentrate were, in the ALJ's opinion, out of proportion with the objective medical record and with claimant's ability to drive, care for his mother and perform chores. Thus, they were not fully credible. (TR 29) Based upon the VE's responses to the hypotheticals presented, the ALJ determined the plaintiff was "capable of making a successful adjustment to work that exists in significant numbers in the national economy." (TR 31)
PLAINTIFF'S CONTENTIONS AND ANALYSIS
As previously noted, it is the plaintiffs contention that the ALJ presented to the VE inaccurate hypothetical questions and then relied upon the VE's responses thereto to conclude Gruthoff could perform a significant number of jobs in the national economy.
If the Secretary seeks to rely on VE testimony to carry his burden of proving the existence of a substantial number of jobs that plaintiff can perform, other than [his] past work, the testimony must be given in response to a hypothetical question that accurately describes the plaintiff in all significant, relevant respects; for a response to a hypothetical question to constitute substantial evidence, each element of the hypothetical must accurately describe the claimant.Felisky v. Bowen, 35 F.3d 1027, 1035-36 (6th Cir. 1994). Specifically, the plaintiff takes issue with the second and third hypotheticals posed to the VE by the ALJ. He points out that the ALJ ignored the VE's testimony that Gruthoff's nonexertional impairments diminished his ability to perform any job, and that persons with marked difficulties in performing certain functions and with the restrictions noted by Dr. Ennis and Dr. Wright would be unable to maintain any type of employment. Basically, it is the argument of the plaintiff that the ALJ erroneously discounted information arising from the opinions of Dr. Ennis, which he found not to be credible. He further charges that the ALJ apparently dismissed the opinions of Dr. Wright, which the VE found to be consistent with those of Dr. Ennis, absent any explanation whatsoever.
Generally speaking, the opinion of a treating physician is to be afforded substantial deference in Social Security cases. Walker v. Secretary of Health Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992). Such deference is only appropriate, however, when the opinion is "supported by sufficient clinical findings and [is] consistent with the evidence." Cutlip, 25 F.3d at 287; see also Young v. Secretary of Health Human Servs., 925 F.2d 146, 151 (6th Cir. 1990). Stated differently, a treating physician's opinion is entitled to deference only when it is both "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 C.F.R. § 404.1527 (d)(2) (2002). If the treating physician's opinion is not accorded controlling weight by the Secretary, the proper weight to be given is to be determined utilizing the following factors: (1) the length of the treating relationship and the frequency of examinations; (2) the nature and extent of the relationship; (3) the presence of medical signs and laboratory findings; (4) consistency of the opinion with the record as a whole; (5) the speciality of the medical source; and (6) the source's level of understanding of the Social Security Administration's programs and evidentiary requirements. 20 C.F.R. § 404.1527 (d)(2)-(6) (2002). An ALJ who chooses to reject a treating physician's opinion must articulate his reasons for doing so. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
While the plaintiff makes much of the fact that the ALJ discounted Dr. Ennis' opinion because it had been some time since he had last examined Gruthoff, the ALJ had other reasons for his determination concerning the psychiatrist's conclusions. Specifically, the ALJ found that Dr. Ennis' reports were not consistent with his own progress notes or the record as a whole. In his treatment notes, Dr. Ennis described a patient who suffered from anxiety, panic attacks and occasional dysphoria who was treated with and responded favorably to medication, never suggesting he was basically unable to function, as was opined in the reports. The remainder of the record, including the report of Dr. Wright, offers support for the ALJ's conclusion that Dr. Ennis' report was not to be accorded controlling weight. Dr. Wright determined that the plaintiff was a fragile individual who could not handle a great deal of stress, was sensitive to criticism and was able to understand only simple instructions. Although the ALJ did not discuss in his opinion the testimony of the VE concerning Dr. Wright's report, it appears he considered it to be consistent with the remainder of the record. Dr. Utley estimated the plaintiffs GAF score to be 55 and noted positive response to medications. The psychiatric evaluation performed in February 2000 indicated marked limitations only in the areas of understanding and carrying out detailed instructions and interacting with the public. Other limitations were characterized as moderate. Treatment notes from plaintiffs hospitalization for forensic evaluation revealed continued progress and that he was "feeling better." Accordingly, the court finds it cannot be said that the ALJ's conclusion that the extent of plaintiffs limitations as set forth in Dr. Ennis' report were not consistent with the record as a whole was not supported by substantial evidence.
In posing a hypothetical question to a VE, the ALJ is required only to include therein limitations he accepts as credible. Casey v. Secretary of Health Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). Therefore, the ALJ was not obliged to include in the hypothetical restrictions based on opinions offered by Dr. Ennis which he did not deem credible. The hypothetical questions in which the ALJ described the plaintiff as needing to work in a low stress environment with routine, repetitive work requiring no skills and the ability to work in isolation contained an accurate description of Gruthoffs limitations and are supported by the record. As a consequence, the court finds the ALJ's reliance on the VE's responses to those hypotheticals to be supported by substantial evidence.
Based on the foregoing, it is RECOMMENDED that the appeal be DENIED.
SUBMITTED AND RECOMMENDED.
NOTICE
ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN TEN (10) DAYS FROM THE DATE OF SERVICE OF THE REPORT. FAILURE TO FILE THEM WITHIN TEN (10) DAYS OF SERVICE MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND FURTHER APPEAL.