Opinion
Case No. 1:14-cv-372
02-03-2015
AMBER N. MARCHANT, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
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 not entitled to child insurance benefits ("CIB") or supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 16-30) (ALJ's decision)).
A "child" is entitled to CIB if the "child" is age 18 or older and under a disability which must have begun before age 22.
I.
Plaintiff applied for CIB on June 27, 2011 and SSI on June 21, 2011. (Tr. 103-04, 128-31, 199-04, 205-11). Plaintiff originally alleged disability beginning March 21, 2007, but later amended her onset date to June 21, 2011. (Tr. 128, 199, 206). Plaintiff alleged disability due to migraines, PTSD, bipolar disorder, back problems, heart issues, anger issues, and ADHD. (Tr. 42-54). Plaintiff's applications were denied initially and upon reconsideration. (Tr. 1132-37, 147-60). Following a hearing on December 3, 2012 (Tr. 35-75), the ALJ issued a decision concluding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 13-34). The Appeals Council denied Plaintiff's request for review on March 6, 2014, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6). 20 C.F.R. §§ 416.1455, 416.1481. The Court has jurisdiction pursuant to 42 U.S.C. Sections 405(g) and 1383(c).
Plaintiff is 22 years old and graduated high school. (Tr. 38, 40). Plaintiff's past relevant work experience includes a factory worker. (Tr. 42).
Plaintiff claims that she graduated from an intermediate school called Life Skills. (Tr. 60). Plaintiff alleges that she reads at a second grade level, but that she can write. (Tr. 40-41).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
Plaintiff quit her seasonal job in a factory, because she "couldn't work with men." (Tr. 43).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. Born on March 21, 1992, the claimant had not attained age 22 as of January 1, 2011, the amended alleged onset date (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5)).
2. The claimant has not engaged in substantial gainful activity since January 1, 2011, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: intermittent back pain, of unknown etiology; bipolar disorder; and history of post-traumatic stress disorder (PTSD) and attention deficit hyperactivity disorder (ADHD) (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).(Tr. 18-29).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) with the following limitations: no climbing of ladders, ropes, or scaffolds (due to concentration deficits); no exposure to hazards or to extremes of temperature or humidity; simple 1 or 2 step takes (requiring little, if any, concentration); no complex or detailed instructions; low stress jobs (defined as no production quotas and no fast-pace work); no exposure to the general public; and limited contact with coworkers and supervisors and no teamwork).
6. At all times relevant to this decision, the claimant has been capable of performing past relevant work as an order picker. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant was born on March 21, 1992, and was 18 years old, which is defined as a "younger individual age 18-49," on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
10. In the alternative, considering her age, education, work experience, and residual functional capacity, there are other jobs that exist in significant numbers in the national economy that the claimant also can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2011, through the date of this decision (20 CFR 404.350(a)(5), 404.1520(f), and 416.920(f)).
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 CIB or SSI. (Tr. 30).
Plaintiff argues that the ALJ erred in giving little weight to the opinions of the longstanding treating psychiatrist, Dr. Judith Freeland, and the longstanding treating psychotherapist, Judy Frederick, LPCC.
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.
Neither party recounted the relevant facts. Accordingly, the Court incorporates the facts as articulated by the ALJ.
Plaintiff alleged disability due to intermittent back pain, but a lumbar spine x-ray on August 20, 2010 showed only some mild disc narrowing in the lower thoracic spine. (Tr. 19). The imaging was otherwise normal and showed no evidence of fracture, bony lesions, or degenerative joint disease. (Id.) Cervical spine imaging on April 1, 2011, showed no evidence of vertebral compression or disc space narrowing. (Id.)
Plaintiff was also evaluated for mental and emotional complaints. (Tr. 19). She reported a history of ADHD and was diagnosed with both PTSD and bipolar disorder in July 2011. (Id.) Dr. Freeland evaluated the claimant on August 29, 2012 and diagnosed PTSD and a mood disorder. (Id.)
Plaintiff also alleged disability due to a learning disorder. Plaintiff's records form the Hamilton City School District show that she had an IEP in elementary school. (Tr. 19). However, these records show that Plaintiff met all of her speech and language goals and the IEP services were discontinued in May 2002. (Id.) Gene Harris, Ph.D, evaluated Plaintiff on behalf of Butler County Children Services in June and July 2011 and reported IQ scores on the WAIS-III test ranging from 98-106 with a Full-Scale IQ score of 102. Dr. Harris claimed this score was "solidly" in the average range and was likely a meaningful representation of the claimant's overall cognitive abilities. (Id.)
Plaintiff began treatment with Judith Frederick, LPCC and Judith Freeland, M.D. at Comprehensive Counseling Services in January 2008. (Tr. 23). However, progress notes from these sources primarily document mental status findings related to situational psychosocial stressors. (Id.) For example, Dr. Freeland noted increased depression in April 2011, but Plaintiff had recently lost custody of her children. (Id.) These notes also show noncompliance related to substance use and medication. (Id.) On August 23, 2012, Ms. Frederick indicated that a mental status examination showed severe depression and anxiety with limited insight and judgment, and Plaintiff complained of hallucinations. (Id.) However, Plaintiff admitted to recent marijuana use. (Id.) Moreover, on August 18, 2012, Plaintiff told Deb Daley, R.N. that she had not taken her medications "for months." (Id.) When Dr. Freeland evaluated Plaintiff on August 29, 2012, she indicated an anxious mood with a constricted and labile affect, but she assigned a GAF score of 60. (Id.) Subsequent notes show some depressed moods, flat affectation, and difficulty with anger and concentration. (Tr. 24).
The Global Assessment of Functioning ("GAF") is a numeric scale (1 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 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning.
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Michael Bologna, L.I.S.W., evaluated Plaintiff on behalf of Butler County Children Services ("BCCS") on March 16, 2011, after the Plaintiff tested positive for marijuana. Plaintiff complained of depression, anxiety, panic attacks, and insomnia, and Mr. Bologna noted a detached, sad, and demanding mood, as well as slowed motor behavior, an exaggerated affect, rambling speech, tense posture, inappropriate judgment, and impaired concentration. (Tr. 24). However, Mr. Bologna also noted full orientation, a happy and sociable mood, and no evidence of memory impairment. (Id.) Plaintiff said she no longer heard voices since starting medication, and she also denied any recent suicidal ideation. (Id.)
Dr. Harris subsequently evaluated Plaintiff on behalf of BCCC in June and July of 2011, and he noted a labile mood and affect, as well as irritability, agitation, depression, and tearfulness. (Tr. 24). However, Dr. Harris also stated that Plaintiff exhibited dramatic expressions and seemed to exaggerate details and offered some conflicting self-reports. (Id.)
Reviewing psychologist, Katherine Fernandez, Psy.D., completed a mental residual functional capacity assessment on August 31, 2011. (Tr. 25). After review of the medical evidence, Dr. Fernandez found that Plaintiff could understand and remember moderately complex routine, and predictable tasks in a relaxed, static setting. Dr. Fernandez found marked impairment in the ability to interact with the public, and she opined that Plaintiff should have no interaction demands with the public. (Id.) Dr. Fernandez otherwise found moderate impairment in the other areas of social functioning, and she opined that Plaintiff would work best alone but could work in an isolated setting involving infrequent and superficial interactions with others. (Id.) Roseann Umana, Ph.D., reviewed the evidence on December 6, 2011 and affirmed Dr. Fernandez's assessment, but added that Plaintiff was limited to work settings involving routine and predictable duties. (Id.)
Dr. Freeland, Plaintiff's psychiatrist at Comprehensive Counseling, completed a Mental Status Questionnaire on August 8, 2011. (Tr. 25). Dr. Freeland opined that Plaintiff would have difficulty maintaining attention and had a poor ability to understand, remember, and follow instructions. (Id.) As for social interaction, Dr. Freeland offered her opinion that Plaintiff had anger and trust issues and was socially maladapted and reactive. (Tr. 26). Dr. Freeland also opined that Plaintiff was restless and irritable and would have difficulty staying on task. (Id.) Dr. Freeland found that Plaintiff had poor or no ability to function in several areas of work-related mental functioning, including the ability to follow work rules, to interact with coworkers and the public, to interact with supervisors, to use judgment, to function independently, to deal with work stress, to maintain attention or concentration, to behave in an emotionally stable manner, and to relate predictably in social situations. (Id.) Dr. Freeland opined that Plaintiff had a fair ability to demonstrate reliability and to understand, remember and carry out simple job instructions. (Id.)
Judith Frederick, LPCC, Plaintiff's therapist at Comprehensive Counseling, completed a Daily Activities Questionnaire on August 8, 2011. (Tr. 26). Ms. Frederick stated that Plaintiff had never lived independently and was developmentally "regressed." (Id.) She said that Plaintiff's boyfriend managed the money and assisted with daily activities. (Id.) However, Ms. Frederick indicated that Plaintiff was able to do chores, including laundry, and that she generally appeared neat and clean. (Id.)
Plaintiff testified that she has two children - a 5 year old daughter and a 4 year old son. (Tr. 39). At the time of the hearing, Plaintiff lived with her children and her boyfriend. (Id.) Plaintiff testified that she only goes shopping at Kroger's and there is only one cashier she will go to - and Plaintiff knows her schedule, so she knows when to shop. (Tr. 63).
B.
Plaintiff argues that the ALJ erred in giving little weight to the opinions of treating psychiatrist Dr. Freeland and treating psychotherapist, Ms. Frederick.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as the treating physician rule, requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of nontreating physicians because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.(Id.) "The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Id. "If the ALJ does not accord controlling weight to the treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id.
The Commissioner's regulations establish a hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists. 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. See 20 C.F.R. §§ 404.1527(d) and 416.927(d). In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. §§ 404.1527(d)(1) and 416.927(d)(1). Still, non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions.
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations of the opinions, than are required to treating sources.SSR 96-6p, 1996 SSR LEXIS 3. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
Here, the ALJ considered a number of factors in 20 C.F.R. § 416.927(c) and reasonably determined that the opinions of Dr. Freeland and Ms. Frederick were not entitled to "controlling or deferential weight" and, instead, gave them "little" weight. (Tr. 26).
Ms. Frederick, a therapist, is not an acceptable medical source under the regulations. 20 C.F.R. § 416.927(a)(2). The Sixth Circuit does not require an ALJ to explicitly discuss his evaluation of evidence from non-acceptable medical sources. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (requirement to provide good reasons for the weight given to pinions "only applies to treating sources"). Still, the ALJ thoroughly and fully analyzed Ms. Frederick's opinion using the factors in 20 C.F.R. § 416.927(c).
The ALJ determined that Dr. Freeland and Ms. Frederick's opinions were not consistent with the evidence in the record. 20 C.F.R. § 416.927(d)(3)-(4). The ALJ noted that the progress notes from both Dr. Freeland and Ms. Frederick showed that Plaintiff's mental status was consistent with the RFC finding, except on rare occasions when Plaintiff was unusually stressed, noncompliant with her medications, or using substances. (Tr. 23-24). For example, while Plaintiff demonstrated worsening depression in April 2011, she had recently lost custody of her children. (Tr. 23, 515-16). Similarly, while an August 2012 treatment note showed the Plaintiff had severe depression and anxiety with limited insight and judgment, Plaintiff admitted to recent marijuana use and noncompliance with her medications. (Tr. 23, 485, 494). In treatment notes where Plaintiff did not have any unusual stressors, was compliant with her medications, and was not under the influence of substances, she demonstrated an anxious mood with a constricted and labile affect and difficulty with anger and concentration, but had a GAF score of 60, indicating only mild to moderate symptoms. (Tr. 23-24, 465-79). The ALJ accommodated Plaintiff's mental symptoms reflected in these treatment notes into his limited RFC determination, which found Plaintiff capable of only simple, one or two-step tasks requiring little, if any concentration, no complex or detailed instructions, low stress jobs with no production quotas or fast-paced work, no exposure to the general public, and limited contact with her supervisors and no teamwork. (Tr. 21).
Next, Plaintiff argues that the ALJ unfairly characterized the findings of Michael Bologna, a counselor who evaluated Plaintiff on behalf of Butler County Children's Services, and Gene Harris, Ph.D., who examined Plaintiff in June and July of 2011. Plaintiff focuses on Mr. Bologna's finding that Plaintiff's mental illness was of "primary concern" and that she "may have difficulty maintaining long-term employment." However, while Mr. Bologna noted a number of positive mental health findings - such as a detached, sad, and demanding mood, rambling speech, impaired concentration, and inappropriate judgment - he also observed that Plaintiff was happy and sociable and did not have evidence of a memory impairment. (Tr. 24, 377-85). Mr. Bologna also noted that Plaintiff had recently tested positive for marijuana. (Tr. 24, 277). Similarly, the ALJ considered that Dr. Harris's exam showed a labile mood and affect as well as irritability, agitation, depression, and tearfulness. (Tr. 24, 369-76). However, Dr. Harris also noted that Plaintiff seemed to exaggerate her symptoms and offered conflicting self-reports. (Tr. 24, 373). Furthermore, the ALJ noted that Dr. Harris only examined Plaintiff once and the longitudinal record regarding Plaintiff's mental health undermined his conclusions. (Tr. 27). The ALJ gave no weight to Dr. Harris's and Mr. Bologna's conclusions that Plaintiff might have trouble maintaining full-time employment, because such opinions were speculative. "Discretion is vested in the ALJ to weigh all the evidence." Collins v. Com'r of Soc. Sec., 357 F. App'x 663, 668 (6th Cir. 2009).
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 the opinions of Dr. Freeland and Ms. Frederick were not entitled to controlling weight. 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 Amber Marchant was not entitled to child's insurance benefits or supplemental security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED.
The Clerk shall enter judgment accordingly, whereupon, as no further matters remain pending for the Court's review, this case is CLOSED in this Court. Date: 2/3/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge