Opinion
Case No. 2:13-cv-552
07-07-2014
John Krol, Plaintiff, v. Commissioner of Social Security, Defendant.
Magistrate Judge Kemp
OPINION AND ORDER
I. Introduction
Plaintiff, John Krol, filed this action seeking review of a decision of the Commissioner of Social Security denying his applications for disability insurance benefits and supplemental security income. Those applications were filed on September 13, 2010, and alleged that Plaintiff became disabled on April 9, 2010, which was later amended to June 1, 2010.
After administrative denials of his claim, Plaintiff was given a hearing before an Administrative Law Judge on June 14, 2012. In a decision dated June 25, 2012, the ALJ denied benefits. That became the Commissioner's final decision on April 15, 2013, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the certified administrative record on August 16, 2013. Plaintiff filed his statement of specific errors on November 5, 2013. The Commissioner filed a response on February 7, 2014. No reply brief has been filed, and the case is now ready to decide.
II. Plaintiff's Testimony at the Administrative Hearing
Plaintiff, who was 47 years old at the time of the administrative hearings and has a high school education with some college, testified as follows. His testimony appears at pages 45-65 of the administrative record.
Plaintiff last worked as a housekeeper at a nursing home. That job required constant standing and walking. He lifted twenty to thirty pounds. He had also worked for a drugstore delivering medical equipment, but that was for only a few weeks. Plaintiff had also worked as a driver for meals on wheels and as a caregiver at a group home.
Plaintiff identified Dr. Bruce Jones as his treating psychiatrist. He described problems with anxiety and being out in public. His anxiety caused physical symptoms such as clammy hands and feet, shortness of breath, and dry mouth. His anxiety attacks could last for minutes or hours. He quit his last job because he was spending about half his time in a basement restroom trying to cope with his anxiety. Anxiety also affected his ability to drive and to be around his family.
On a typical day, Plaintiff would take medications, and, if he was having a good day, do some household chores. He would occasionally go outdoors to sit on his porch. Mostly, he watched television or stayed in his room. He had difficulty sleeping through the night, which caused him to be tired during the day. His anxiety also produced depression and he had been having frequent crying spells.
In response to questioning from the ALJ, Plaintiff said he had not taken medication from 2002 to 2009. His current medication had improved his condition only slightly.
III. The Medical Records
The pertinent records - those which relate to Plaintiff's psychological impairment, since that was the sole basis of his disability claim - can be summarized as follows. The Court will provide page references for these records as they are summarized.
The first such record is a Basic Medical Form completed for Ohio Job and Family Services. The psychological diagnoses on the form are anxiety/panic and depression, and Plaintiff's health status was described as "deteriorating." The completing physician said that Plaintiff was unemployable and would be for nine to eleven months. Dr. Hayes, who filled out the section of the form entitled "Mental Functional Capacity Assessment," noted marked limitations in various areas, including being able to maintain concentration and attention for extended periods, to be punctual and work on schedule, and to complete a normal workday or work week without interruption from psychologically-based symptoms. As support, Dr. Hayes signed off on an evaluation apparently done by Ms. de Lange which diagnosed a major depressive disorder, moderate, recurring, a panic disorder with agoraphobia, and an obsessive-compulsive disorder. Plaintiff's GAF was rated at 52 (although it had been as high as 70 in the past year). The evaluation recited Plaintiff's report that he had stopped working due to increasing mental health symptoms and that he was only sleeping an hour per night, was having frequent panic attacks, and was avoiding going out in public. (Tr. 336-47).
Notes from the Holzer Clinic show that Plaintiff began treatment there in March, 2011. At that time, he was having panic attacks and did not like to be out in public. He was receiving monthly counseling and taking medications, and also having problems sleeping due to racing thoughts. His medication was changed and he was to be seen again in a month. (Tr. 359-65). Later that same month, Plaintiff sought treatment from the emergency room for muscle pain brought on by a panic attack. (Tr. 366-71).
In October, 2010, Plaintiff underwent a diagnostic assessment at Tri-County Mental Health and Counseling Services, which was completed by Ms. de Lange. He reported much the same symptoms including panic attacks, depression, and social anxiety. He had become worse in the past year. He was taking medicine to help him sleep and his sleep was fair. His medication was not helping his anxiety. Both his motivation and prognosis were described as "very good." He was recommended for individual counseling and was to continue on psychiatric medication. (Tr. 382-86). A note from the same agency dated in April, 2011, was fairly similar; by then, his GAF was rated at 48, and his prognosis was still favorable. (Tr. 375-78).
Dr. Sarver, a psychologist, saw Plaintiff on June 3, 2011, for a consultative evaluation. Plaintiff reported being unable to work because he could not be around people. His independent living skills were "adequate" and he was able to pay bills, cook, and shop. At that time, he was taking Zoloft and Xanax for his depression and anxiety. He reported not getting along well with supervisors and the public. He was getting counseling every two weeks.
Dr. Sarver observed that Plaintiff was cooperative and interactive and that his attention was appropriate for the evaluation. His affect was constricted and his mood was subdued, and Plaintiff described mood swings and a depressed appetite. Under the heading "Anxiety," Dr. Sarver said that "there were no significant indications of agoraphobia, but rather dynamics of social phobia." Plaintiff did not have any difficulty with attentional pace or persistence, with memory, or with reading and writing.
In Dr. Sarver's view, Plaintiff did not have a great deal of understanding about "the emotional complexities of interpersonal relationships" and he would have trouble working toward goals. Plaintiff's diagnoses included an adjustment disorder with mixed anxiety and depressed mood, social anxiety disorder, and a personality disorder with avoidant features. His GAF was rated at 55. Dr. Sarver thought Plaintiff could remember and carry out simple job instructions but would have trouble with either complex instructions or multi-step tasks. His relationship with others in the work setting was "problematic," and he would "consistently have difficulty dealing with normative work pressures." (Tr. 387-94).
The only other medical records are treatment notes from Tri-County. They show that throughout 2011 and 2012, Plaintiff continued to report psychological symptoms and to receive medication from his psychiatrist, Dr. Jones. His symptoms varied, with improvement at times, but he still was having trouble going out in public. Those notes do not contain any express work-related limitations. (Tr. 396-419).
A file review was done by a state agency psychologist, Dr. Lewin. She gave "great weight" to Dr. Sarver's opinion as being consistent with the evidence and concluded that Plaintiff had moderate limitations in the areas of carrying out detailed instructions, maintaining attention for extended periods, staying on schedule and being punctual, working close to others, and completing a workday or workweek without interruptions from psychologically-based symptoms. She also perceived moderate limitations in most areas of social interaction and in dealing with changes in the workplace. Her conclusion was that Plaintiff could work doing simple repetitive tasks in a low stress environment and that he would do best working as independently as possible. She thought he could relate to small groups of coworkers. (Tr. 107-09). She also commented that the Job and Family Services Opinion (that of Dr. Hayes) was "without substantial support from other evidence in the record, which renders it less persuasive" and that the same was true of the Family Health Care Opinion. (Tr. 110).
IV. The Vocational Testimony
Ms. White, a vocational expert, also testified at the administrative hearing. Her testimony begins at page 66 of the record.
She began by classifying Plaintiff's past work. His job as a nursing home housekeeper was unskilled and light, as was the job delivering meals on wheels. The group home caregiver position was medium and semi-skilled.
Ms. White was asked some questions about a hypothetical person with no exertional limitations who could learn, remember and perform only simple, routine, repetitive tasks in a low-stress environment, which was defined as one having a routine, static, and predictable work environment without production quotas, strict time standards, and over-the-shoulder supervision. The person also could interact only occasionally with supervisors and coworkers, and not at all with the public. The person also would have to work, for the most part, independently as opposed to engaging in teamwork. Someone with those restrictions might, according to Ms. White, be able to work in Plaintiff's housekeeping job, but the person could also perform jobs like yard laborer, cleaner, or laundry presser. Ms. White also gave numbers for those jobs in both the regional and national economies.
Next, Ms. White was asked to assume that the hypothetical person could not maintain concentration, persistence, and pace to do even simple, routine tasks on a regular work schedule. Such a person could not, in her view, be employed. The same would be true for a person who could not work around others even if he or she did not have to interact with them, or if the person were absent from work four or more days per month.
V. The Administrative Law Judge's Decision
The Administrative Law Judge's decision appears at pages 20-31 of the administrative record. The important findings in that decision are as follows.
The Administrative Law Judge found, first, that Plaintiff met the insured requirements of the Social Security Act through September 30, 2015, and that he had not worked since June 1, 2010, his alleged onset date. As far as Plaintiff's impairments are concerned, the ALJ found that Plaintiff suffered from anxiety with social phobia, panic disorder with agoraphobia, avoidant personality disorder, major depressive disorder with mixed anxiety and depression, and obsessive-compulsive disorder. The ALJ also found that these impairments did not, at any time, meet or equal the requirements of any section of the Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
The ALJ next concluded that Plaintiff had the residual functional capacity to perform work at all exertional levels, but that he was limited to the performance of simple, repetitive, routine tasks in a low stress environment, as the ALJ had defined it to Ms. White, with only occasional interaction with coworkers and supervisors and no contact with the public. The ALJ also determined that Plaintiff would perform optimally in work assignments not requiring teamwork and which allowed him to work largely independently of others.
Last, the ALJ found that, with these restrictions, Plaintiff could perform the jobs identified by the vocational expert and that such jobs existed in significant numbers in the regional and national economies. Consequently, the ALJ concluded that Plaintiff was not entitled to benefits.
VI. Plaintiff's Statement of Specific Errors
In his statement of specific errors, Plaintiff raises a single issue. He argues that the ALJ's step five finding (that Plaintiff could perform the jobs identified by Ms. White) was not supported by substantial evidence because "[t]he ALJ failed to incorporate the totality of [Plaintiff's] work-related limitations supported in the record in the hypothetical posed to the [vocational expert] ...." Statement of Specific Errors, Doc. 15, at 12. In particular, he claims that limitations described by Dr. Sarver and by Dr. Hayes were improperly omitted from that hypothetical question. The Court analyzes this claim under the following standard.
Standard of Review. Under the provisions of 42 U.S.C. Section 405(g), "[t]he findings of the Secretary [now the Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 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) (quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976). The Commissioner's findings of fact must be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining whether the Commissioner's decision is supported by substantial evidence, the Court must "'take into account whatever in the record fairly detracts from its weight.'" Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court would reach contrary conclusions of fact, the Commissioner's decision must be affirmed so long as that determination is supported by substantial evidence. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983).
A. Dr. Sarver
According to Plaintiff, Dr. Sarver concluded that Plaintiff had a diminished ability to carry out simple job tasks, problems with relationships in the work setting, and difficulty dealing with work pressure. The ALJ said in his decision that he gave great weight to Dr. Sarver's views. However, because his hypothetical question to the vocational expert did not, in Plaintiff's opinion, incorporate these precise limitations, Plaintiff concludes that the ALJ erred. As the Court reads Plaintiff's argument on this issue ("Had the ALJ actually given Dr. Sarver's opinion 'great weight,' the hypothetical on which the ALJ relied should have incorporated the entirety of his opinion and it did not," Statement of Errors, Doc. 15, at 14), the error which Plaintiff has identified is a seeming inconsistency between what the ALJ claimed to have done and what he actually did. The Court does not view Plaintiff's argument as contending that the ALJ was required to credit Dr. Sarver's opinion in full but erroneously failed to do so.
The ALJ gave "great weight to Dr. Sarver's opinion in that it is consistent with the record as a whole." (Tr. 29). The ALJ did not purport to give that opinion controlling weight, however. The hypothetical question posed to the vocational expert - which, as the Commissioner points out, incorporated the limitations which appear in Dr. Lewin's review (which, in turn, also gave great weight to Dr. Sarver's opinion) - was generally consistent with Dr. Sarver's views. It recognized that Plaintiff would have problems with social interaction and limited him to occasional interaction with coworkers and supervisors, to no over-the-shoulder supervision, and to no contact with the public. It incorporated the difficulty in dealing with work stress by limiting Plaintiff to jobs which had no strict time limits or production quotas. It also limited Plaintiff to the performance of simple tasks based on Dr. Sarver's view that as the tasks Plaintiff was asked to perform became more complex or multi-step, his psychological conditions would make it more difficult for him to attend and concentrate on those tasks. Any differences between Dr. Sarver's views and the ones adopted by the ALJ are minor, and the ALJ's interpretation of Dr. Sarver's opinion (and the balance of the psychological evidence) is supported by Dr. Lewin's review. The Court simply does not see these minor inconsistencies as evidence that the ALJ purported to give Dr. Sarver's opinion great weight but did not, or that the ALJ misunderstood Dr. Sarver's opinion. Again, Plaintiff does not argue that the ALJ was compelled to accept Dr. Sarver's opinion in every respect, so to the extent that he did not, that is not error. The Court finds no merit in Plaintiff's first argument. Cf. Zongos v. Colvin, 2014 WL 788791, *3 (N.D.N.Y. Feb. 25, 2014)(discussing how an ALJ can adopt only portions of expert opinions when they are not afforded controlling weight).
B. Dr. Hayes
Plaintiff's second argument focuses on the evaluation done by Ms. de Lange and concurred in by Dr. Hayes. He appears to argue that Dr. Hayes was a treating source and that the ALJ failed to give proper deference to his opinions concerning various marked limitations in Plaintiff's ability to perform work-related functions, and failed to explain why those views were rejected. He also argues that such extreme limitations are consistent with the medical records and with Plaintiff's testimony and self-report of symptoms, and he asks for a remand so that these limitations can be incorporated into a proper hypothetical question for the vocational expert.
The ALJ had this to say about the form completed by Ms. de Lange and Dr. Hayes:
Relying on the claimant's reported history and symptoms and a onetime interview, Ms. de Lange completed a mental residual functional capacity form. She noted numerous moderately and markedly limited areas. Only three categories out of 20 showed no significant limited (sic). The functional limitations were expected to last nine to eleven months. The functional capacity sheet was co-signed by Dr. Terry(Tr. 27). The Commissioner argues that the ALJ properly refused to credit opinions based solely on Plaintiff's self-reported symptoms, as opposed to the results of an evaluation or treatment, and that, in any event, the nine to eleven-month duration of the restrictions does not satisfy the Social Security Act's twelve-month durational requirement. The Commissioner does not respond directly to the argument that Dr. Hayes qualified as a treating source.
Hayes (Exhibit 1F). The undersigned gives little to no weight to the extreme limitations cited in the opinion for several reasons. First, the record failed to document any mental health treatment prior to being seen by Ms. de Lange. Next, the opinion is reflective of the claimant's self reported history and self assessments without treatment. Finally, the extreme limitations are not supported by the record as a whole.
It does appear from the record that Dr. Hayes never provided any treatment to Plaintiff. The Court cannot find his name on any documents other than the residual functional capacity assessment form and the Mental Status Report dated September 22, 2010, both of which are also signed by Ms. de Lange. Nevertheless, there is some argument to be made in favor of his being a treating source.
20 C.F.R. §§404.1502 and 416.902 provide a definition of "treating source." Such a physician or psychologist is one who "provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you." That latter concept - an "ongoing treatment relationship" - means that the claimant has seen the doctor "with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s)." It excludes a source who was seen "solely on your need to obtain a report in support of your claim for disability." Dr. Hayes, although he apparently did not provide treatment (and certainly had not at the time he signed the form in question), was seen by Plaintiff as part of an effort to obtain treatment, and he was seen for an evaluation of his condition, which is one of the types of treatment cited in the regulations.
However, the Court agrees with the concept expressed in Ratto v. Secretary, Dept. of Health and Human Services, 839 F.Supp. 1415, 1425 (D. Or. 1993), that "[i]t is not necessary, or even practical, to draw a bright line distinguishing a treating physician from a non-treating physician." As that court said, "the relationship is better viewed as a series of points on a continuum reflecting the duration of the treatment relationship and the frequency and nature of the contact." Id. Thus, some sources who actually see a claimant only once, but are part of a team providing treatment and who rely on team observations and assessments made over a period of time, are clearly treating sources, see, e.g. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003). On the other hand, a physician who does not appear to have relied on such matters, and who does not have a longitudinal view of the claimant's condition, may well not qualify as treating source - or, if he does, may not qualify as a source whose opinion need be given significant weight. See, e.g. Carrigan v. Colvin, 2014 WL 1757208 (E.D. Cal. April 30, 2014).
The Court assumes, without deciding, that Dr. Hayes could be viewed as a treating source. However, the absence of any evidence of actual treatment, and the fact that his assessment was based on either a single interview of Plaintiff done by himself or by Ms. de Lange without any review of a longitudinal treatment history - which, at that time, did not even exist - puts him at the very bottom of the spectrum of such sources.
The question then becomes whether, as the Court of Appeals expressed in Wilson v. Comm'r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004), the ALJ both had, and articulated, good reasons for refusing to give substantial weight to Dr. Hayes' opinion. In the Court's view, the answer to both of these inquiries is yes.
Taking them in reverse order, the ALJ's decision is articulated well enough to explain to both the Plaintiff and to the Court why Dr. Hayes' views about extreme limitations were given little weight. The ALJ did not consider him to be a significant treating source, found that the only evidence supporting his opinion was Plaintiff's own subjective report of symptoms, and concluded that other evidence, which the ALJ examined at length in his decision, did not support the opinion. Thus, there was no violation of the regulatory requirement, found in 20 C.F.R. §404.1527(c), to give "good reasons" for the discounting of a treating source opinion.
As to the sufficiency of the reasons given, the record clearly supports the fact that Dr. Hayes did not base his opinion on any history of treating Plaintiff or any records of treatment. Second, the other records, while they do support Plaintiff's fairly consistent report of symptoms over time, also show that he was doing fairly well at times, that he was coping with activities of daily living, and that medication helped him at times. Both Dr. Sarver and Dr. Lewin expressed opinions, based on a more complete review of records, that he could work with certain limitations. The ALJ found Plaintiff not totally credible in terms of his description of the severity of his symptoms, see Tr. 26, and Plaintiff has not challenged this finding. Under these circumstances, the ALJ was permitted to give Dr. Hayes' evaluation little weight and to rely more heavily on the views of Drs. Sarver and Lewin. See, e.g., McGlothin v. Commissioner of Social Sec., 299 Fed.Appx. 516, **7 (6th Cir. Oct. 31, 2008)(affirming the rejection of a treating source's "assessment [which] appeared to the ALJ to be based almost entirely on [the plaintiff's] subjective complaints, which the ALJ found to be incredible"); see also Ferguson v. Comm'r of Social Security, 628 F.3d 269, 274 (6th Cir. 2010)(approving rejection of treating source opinion which was "not explained in any way, [was] not tied to any physical examination findings or empirical testing results, and [was] not justified by reference to findings made by other physicians" but rather was "no more than a statement of her opinion, based on [Plaintiff's] own self-reporting, that [Plaintiff] was disabled"). The Court therefore finds no merit in Plaintiff's second argument.
VII. Decision
Based on the above discussion, Plaintiff's statement of errors is overruled and the Clerk is directed to enter judgment in favor of the Defendant Commissioner of Social Security.
Terence P. Kemp
United States Magistrate Judge