Opinion
Case Number 02-10320-BC.
February 9, 2005
The plaintiff filed the present action on December 24, 2002 seeking review of the Commissioner's decision denying the plaintiff's claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. The case was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and award her benefits or in the alternative remand for further proceedings. The defendant filed a motion for summary judgment requesting affirmance of the Commissioner's decision. Magistrate Judge Binder filed a report and recommendation on January 27, 2004 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation to which the defendant responded, and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, the plaintiff's objections, the Commissioner's response, and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff raised four issues in her motion for summary judgment, which the magistrate judge thoroughly considered in turn. First, the plaintiff asserts that the evidence in the administrative record establishes that she has met Listing 12.04 in the regulations dealing with affective disorders and therefore she is entitled to benefits without regard to her residual functional capacity to perform work. She argues that the administrative law judge (ALJ) erroneously concluded that no objective medical confirmed her impairment. Second, the plaintiff contends that the ALJ erred when he failed to give controlling weight to a treating physician who opined that the plaintiff's limitations were severe enough to meet a Listing and otherwise would prevent her from performing substantial gainful activity on a sustained basis. Third, she believes that the ALJ improperly evaluated her credibility since there is no substantial evidence to support his conclusion that she is not a reliable reporter of her symptoms and conditions. Finally, the plaintiff concludes that the foregoing errors caused the ALJ to pose a hypothetical question to the vocational expert at the administrative hearing that failed to account for all her limitations and therefore did not support the conclusion that there were jobs in significant numbers in the economy that she could perform.
The magistrate judge rejected each of these arguments. The plaintiff's objections repeat these same arguments and focus on her view that the magistrate judge did not consider fully the evidence in the administrative record. She challenges the magistrate judge's conclusion that substantial evidence supports the ALJ's decision that the plaintiff is not disabled. She contends that the magistrate judge incorrectly interpreted and failed to analyze certain medical evidence that shows the debilitating nature of her anxiety and depression. She argues that she meets the Listing for "affective disorders." And she insists that the magistrate judge's acceptance of the ALJ's failure to accord the plaintiff's treating physicians controlling weight, the findings that the plaintiff lacked credibility, and the determination that the plaintiff could perform a number of jobs available in the national economy is unwarranted.
The plaintiff, presently forty-nine years old, applied for a period of disability and disability insurance benefits on August 25, 1994 when she was thirty-nine years old. Her application was denied both initially and on reconsideration. Thereafter, the plaintiff appeared before ALJ Anthony B. Roshak who determined that the plaintiff was not disabled. On November 14, 1997, the Appeals Council remanded the case for further proceedings, and on remand ALJ Roshak again concluded that the plaintiff was not disabled. On November 12, 1999, the Appeals Council remanded the case a second time and sent it to a different judge pending the outcome of additional mental health evaluations. The present proceeding followed.
At the time she applied for benefits, the plaintiff had been employed for approximately eighteen years as an insurance claims adjuster for Blue Cross/Blue Shield of Michigan. She had worked until August 12, 1991, the date she alleges she became disabled as a result of recurrent depression. Since that time, however, she has attempted to return to her previous job with Blue Cross, worked for a period of five months as an office manager for a community center and three months as an accounting clerk. These attempts apparently were marred by job-related anxiety and poor work performance and ultimately "determined to be less than substantial gainful activity or an unsuccessful work attempt" in previous administrative proceedings. Tr. at 15.
In her application for benefits, the plaintiff alleged that she was unable to work due to severe recurrent depression. On August 17, 2000, the plaintiff, then forty five years old, appeared before ALJ Henry Perez, Jr. pursuant to the Appeals Council's second ordered remand. ALJ Perez filed a decision on September 29, 2000 in which he found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since August 12, 1991 (step one); the plaintiff suffered from depression and an adjustment disorder, which were "severe" within the meaning of the Social Security Act (step two); neither of these impairments alone or in combination met or equaled a Listing in the regulations (step three); and the plaintiff is unable to perform her past relevant work (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform work at all exertional levels — a finding not challenged in this case — and retained the capacity to perform the non-exertional requirements of work except for dealing with detailed or complex problems, jobs requiring high levels of stress or high production demands, and tasks demanding more than minimal contact with the public, her supervisors, and coworkers. Relying on the testimony of a vocational expert, the ALJ found that there was a significant number of jobs in the national economy that fit within these limitations including sorter, packager, and assembler. Based on that finding and using the Medical Vocational Guidelines found at 20 C.F.R. Pt. 404, Subpt. P, App. 2, Section 204.00 as a framework, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act. Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the plaintiff's request for review on October 22, 2002.
The plaintiff does not contend that the ALJ or the magistrate judge committed any legal error apart from their evaluation of the facts. The plaintiff's main quarrel with the results in this case centers on her contention that the "uncontradicted" evidence requires a finding of disability either because she has shown that she meets Listing 12.04 or because she does not have the non-exertional capacity to engage in sustained work. The ALJ, however, did not view the evidence of disability as uncontradicted, and the Court believes that the record supports that conclusion. There were several mental health professionals whose opinions in one form or another appear in the administrative record. Not all can be considered treating sources, and the conclusions of these individuals are not uniform.
All parties agree with the magistrate judge that the plaintiff has the burden of proving disability in order to qualify for Social Security disability benefits, and that "disability" is defined as the "inability to engage in any substantial gainful activity" due to a "physical or mental impairment" that could cause death or might reasonably be expected to last continuously for at least twelve months. See 42 U.S.C. § 423(d)(1)(A). Of course, a person is not disabled merely because her limitation prevents the person from performing previous work, if that person can perform other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The parties also accept the rule that the authority of this Court to review administrative decisions of the Commissioner is limited to deciding whether the proper legal standards were used and "whether there is substantial evidence in the record to support the findings." Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (quoting Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 851 (6th Cir. 1986)). The plaintiff takes issue with the application of this rule, however, arguing that the magistrate judge and the ALJ culled from the record only that evidence which favored a determination of no disability, violating the familiar instruction that a decision cannot be based on a single piece of evidence in disregard of other pertinent evidence that exists in the record, see Hephner v. Matthews, 574 F.2d 359, 362 (6th Cir. 1978), and that "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).
The plaintiff has advanced a strong argument that the evidence supports a finding that she is disabled as a result of her severe depression, and she points to specific evidence in the record which, if accepted, could establish a Listing level impairment. The plaintiff notes that the magistrate judge made such an observation with respect to the criteria stated in 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04(B), but then she argues that a finding of that sort compels a determination of disability. That argument betrays a fundamental misunderstanding of the respective roles of the ALJ on one hand and that of the court on review. The Court's task in reviewing a Social Security disability determination is a limited one. The ALJ's findings are conclusive if they are supported by substantial evidence, according to 42 U.S.C. § 405(g). Consequently, the Court's review is confined to determining whether the correct legal standard was applied, and whether the findings are supported by substantial evidence on the whole record. See Wright, 321 F.3d at 614. "`Substantial evidence' means `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Kirk v. Sec. of Health Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). This Court may not base its decision on a single piece of evidence and disregard other pertinent evidence when evaluating whether substantial evidence exists in the record. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Thus, where the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record might support a contrary conclusion. Smith v. Sec. of Health Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The Sixth Circuit has stated that the role of the Court "is not to resolve conflicting evidence in the record or to examine the credibility of the claimant's testimony." Wright, 321 F.3d at 614. Therefore, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Of the mental health professionals whose records are included, only Dr. Donald M. Aytech appears to be a treating source who developed a longitudinal history of the plaintiff's psychological course, and that was for four months in 1990 and then in August through November 1991, a time before Dr. Aytech completed his doctorate training. His notes from July 1992 describe the plaintiff as depressed, pessimistic, cooperative, characteristically warm, and tending to avoid social conflict with depressed feelings when she is unable to do so. Tr. at 211. He diagnosed an adjustment disorder with depressed mood, and stated that "[t]he prognosis for positive change with appropriate treatment is good." He does not find that she is unable to work, and in fact notes only that she should not be forced to work beyond a forty-hour week. Tr. at 212.
However, five years later, Dr. Aytech completed a form without the benefit of his notes and without seeing the plaintiff in the interim in which he remembered her condition as much worse. He says that "I think the diagnosis was Major Depression," tr. at 180, and checked the most severe options when assessing the plaintiff's difficulties with co-workers and supervisors, social functioning, concentration, decompensation at work, and ability to cope with stress. Tr. at 180-81. The ALJ discounted this evidence, and he was justified in doing so because of the inconsistency between the reports and the apparent degrading effect the passage of time had on Dr. Aytech's memory.
H. Mansour, M.D., a psychiatrist, examined the plaintiff on October 28, 1994 at the request of the Disability Determination Service. The magistrate judge mistakenly identified the examiner as Stephen Osinski, an administrative law judge whose name appears on a document in the record immediately following Dr. Mansour's report. Dr. Mansour recounted that the plaintiff told him that she suffered from poor sleep and memory but had a fair appetite. Her thoughts were organized, she denied any psychiatric illness and stated that she felt mildly depressed most of the time. Tr. at 96-97. She also told Dr. Mansour that she drank a six-pack of beer every few days, apparently prompting Dr. Mansour to diagnose alcohol abuse and the need to rule out depression. He assigned a global assessment of functioning (GAF) score of 55 to 60. The GAF scale is reflected in Axis V of a differential diagnosis. "Axis V is for reporting the clinician's judgment of the individual's overall level of functioning. This information is useful in planning treatment and measuring its impact, and in predicting outcome. The reporting of overall [psychological, social, and occupational] functioning of Axis V is done using the Global Assessment of Functioning (GAF) Scale." See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders — Text Revision 34 ( DSM-IV-TR), 30 (4th ed. 2000). A GAF Scale of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers). Ibid.
Donald Tate, another agency psychologist, completed a psychiatric technique review form on April 4, 1995 in which he concluded that the plaintiff did not suffer from a severe mental impairment, and she had only slight restrictions of daily living, no difficulties in maintaining social functioning, seldom had deficiencies of concentration, persistence or pace, and never experienced deterioration at work. Tr. at 94.
Steven Miller, Ph.D., a psychologist, performed an evaluation on the plaintiff on January 5, 1996 that included psychological testing. He found that the plaintiff was severely depressed, she was in the low-average intelligence range, she suffered from an adjustment disorder, and she was not able to work because of her limitations of concentration and attention. Tr. at 106-11. He recommended that the plaintiff pursue counseling, work in community services to build her confidence, and explore vocational rehabilitation when her condition stabilized. Tr. at 111-12.
There is no record that Dr. Miller actually treated the plaintiff beyond the evaluation, but the record suggests that Paul W. Leak, a psychotherapist in Dr. Miller's organization, saw the plaintiff on November 11, 1995.
There is another evaluation in the record, this one from Sung Ran Cho, M.D., an agency psychiatrist who saw the plaintiff on May 16, 2002 after the Appeals Council remanded the case to the ALJ for the second time (not the third time, as the plaintiff inaccurately argues in her motion and objections). Dr. Cho documented the plaintiff's lack of confidence in psychiatrists and recited the history the plaintiff related to him, including an encounter with the plaintiff's supervisor at Blue Cross in which the plaintiff said that she was "ready to bring a gun to work" in 1992. Tr. at 225. Dr. Cho wrote that the plaintiff moved from her house in February 2000 due to domestic turmoil, and she now lived near her sister. The plaintiff said she awoke at 5:30 a.m., showered, made coffee, and walked to her sister's apartment where she walked on the treadmill for twenty minutes daily. She went to work at 7:30 a.m., returned home at 4:30 p.m., and worked three days each week for a couple of hours helping youngsters do their homework. She went to church three times per month, shopped for groceries, and went to the Eastern Market on Sunday mornings. He found that she spoke in a loud and anxious voice and reacted with anger and depression. He diagnosed major depression with a severe history of psychotic symptoms in the past, and he assessed a GAF of 60. Tr. at 229. Dr. Cho concluded that the plaintiff had a poor ability to work with others, complete a normal work day and perform at a consistent pace. She was also unable to accept instructions, get along with co-workers, maintain socially appropriate behavior, or set realistic goals. Tr. at 231-32.
The plaintiff insists that the reports of Dr. Miller, Dr. Cho, and the latter report of Dr. Aytech establish that she has met Listing 12.04. In this Circuit, in order to qualify as "disabled" under a Listing in the Secretary's regulations, a claimant must demonstrate that he or she meets all of the criteria contained in the Listing. See Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 855 (6th Cir. 1986). Alternatively, "[a] claimant can demonstrate that she is disabled because her impairments are equivalent to a listed impairment by presenting `medical findings equal in severity to all the criteria for the one most similar listed impairment.'" Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). "This decision must be based solely on medical evidence supported by acceptable clinical and diagnostic techniques." Land v. Secretary of Health and Human Services, 814 F.2d 241, 245 (6th Cir. 1986) (citing 20 C.F.R. § 404.1526(b).
The ALJ did not accept the conclusions of Drs. Cho, Miller, and Aytech, but rather chose to accept the conclusions of Drs. Tice and Mansour. He made that conclusion after evaluating the respective reports and also comparing their findings to the reports of the plaintiff's daily activities from the plaintiff's brother and the plaintiff herself. This practice is consistent with the regulations. See 20 C.F.R. §§ 404.1529(c)(2) (ALJ is to consider "[o]bjective medical evidence . . . [as] a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms . . . may have on your ability to work"); 404.1529(c)(4)(i) (ALJ considers "all of the evidence presented, including information about your prior work record, your statements about your symptoms, evidence submitted by your treating, examining or consulting physician or psychologist, and observations by our employees and other persons [concerning] [y]our daily activities. . . ."); 404.1527(d)(4) (In assessing medical opinions, the ALJ considers that "the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion"). The ALJ also considered the plaintiff's presentation when she testified at the administrative hearing. The ALJ concluded, however, that the plaintiff overstated her disability and therefore he discounted her testimony. In evaluating a claimant's complaints, the ALJ quite properly may consider the claimant's credibility. See Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); Kirk v. Sec'y of Health Human Servs., 667 F.2d 524, 538 (6th Cir. 1981). In assessing the credibility of a witness, personal observations are important. In fact, it is one of the reasons underlying the preference for live testimony. See 2 McCormick on Evidence § 245, at 94 (4th ed. 1992); cf. Ohio v. Roberts, 448 U.S. 56, 63-64 (1980). Thus, an ALJ, who has observed a witness' demeanor while testifying, should be afforded deference when his credibility findings are assessed. See Jones v. Comm'r of Social Sec., 336 F.3d 469, 475-76 (6th Cir. 2003); Villarreal v. Sec'y of Health Human Servs., 818 F.2d 461, 463 (6th Cir. 1987). In this case, the ALJ concluded that the plaintiff did not accurately recount her own symptoms and conditions. That conclusion was based in part on inconsistencies in the record that the ALJ identified and which he could properly consider.
The Court finds little difficulty in concluding that substantial evidence supports the ALJ's conclusion that the plaintiff failed to prove that she met or equaled Listing 12.04.
Nor did the ALJ err when he did not give controlling weight to the treating source, Dr. Aytch. The regulation promulgated by the Secretary states that: "more weight [will be given] to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(d)(2). The Sixth Circuit has consistently applied this rule. A treating physician's opinion should be given greater weight than those opinions of consultative physicians who are hired for the purpose of litigation and who examine the claimant only once. See Jones v. Sec.'y of Health Human Servs., 945 F.2d 1365, 1370 n. 7 (6th Cir. 1991); Farris v. Sec'y of Health Human Servs., 773 F.2d 85, 90 (6th Cir. 1985). If a treating physician's opinion is not contradicted, complete deference must be given to it. Walker v. Sec'y of Health Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). However, a treating physician's opinion may be rejected if there is good reason to do so. Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988). The Sixth Circuit has held that treating physicians' opinions "are only given such deference when supported by objective clinical evidence." Warner v. Comm'r of Soc. Sec., 375 F.3d 378, 390 (6th Cir. 2004) (citing Jones v. Comm'r of Soc. Sec., 336 F. 3d 469, 477 (6th Cir. 2003).
As noted above, the opinion of Dr. Aytch finding that the plaintiff met the criteria for disability based on depression and affective disorder was contained in a form completed by the doctor over five years after seeing the plaintiff and without apparent reference to his medical notes. The conclusions also were inconsistent with his earlier recorded findings. The ALJ's decision to give little weight to those conclusions was reasonable.
Finally, the Court finds that the hypothetical question posed to the vocational expert was proper. The premise of the plaintiff's argument to the contrary is that the ALJ failed to accept evidence that the plaintiff had deficiencies in concentration and consequently omitted an accommodation from the hypothetical question that should have been included. The plaintiff criticizes the hypothetical question posed to the vocational expert because she claims it did not completely account for her limitations on her ability to concentrate. She points to Dr. Cho's findings and suggests that the range of frequency of this deficiency in five categories from "never" to "constant," with "often" being the third category, implies a linear range that can be arithmetically quantified. She argues that "often" implies deficiencies in concentration fifty percent of the time, or within a range of 37-1/2% to 62-1/2%. She then cited to Judge Lawrence Zatkoff's decision in Bankston v. Commissioner of Social Security, 127 F.Supp.2d 820, 827 (E.D. Mich. 2000), to support her argument that the hypothetical question posed in this case was defective.
In Bankston, the Court indeed attempted to quantify the term "often," but reversed the ALJ's no-disability finding not because the hypothetical question failed to incorporate that concept, but rather because the claimant's attorney actually posed a question to the vocational expert that incorporated the notion that the deficit occurred more than fifty percent of the time and obtained a response that supported a disability finding. That same line of questioning occurred in this case.
However, there is no Sixth Circuit authority that quantifies the middle box on a Psychiatric Review Technique Form (PRTF) as meaning that a claimant suffers a concentration deficiency for half the time during a working day. The PRTF merely sets forth a relative scale, and the ALJ then must develop an assessment of residual functional capacity based on the entire record. That enterprise is usually an exercise in determining credibility. The rule that a hypothetical question must incorporate all of the claimant's physical and mental limitations does not divest the ALJ of his or her obligation to assess credibility and determine the facts. In fashioning the hypothetical question to be posed to the vocational expert, the ALJ "is required to incorporate only those limitations accepted as credible by the finder of fact." Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). "[A]n ALJ is not required to accept a claimant's subjective complaints and may properly consider the credibility of a claimant when making a determination of disability," and "can present a hypothetical to the [vocational expert] on the basis of his own assessment if he reasonably deems the claimant's testimony to be inaccurate." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
Moreover, including only the categorical reference, whether quantified on not, in a hypothetical question is a practice that has been rejected by the Sixth Circuit. In Smith v. Halter, 307 F.3d 377 (6th Cir. 2001), the plaintiff made an argument similar to the one advanced here. The court stated that "[t]he ALJ's `finding' Smith relies on here — that Smith `often' has problems concentrating that preclude him from completing tasks on time — was a single box the ALJ checked in a 1-5 rating scale on a standard psychiatric assessment form. But the ALJ went beyond this simple frequency assessment to develop a complete and accurate assessment of Smith's mental impairment, as Varley [ v. Sec'y of Health Human Servs., 820 F.2d 777 (6th Cir. 1987),] requires." Id. at 379. The court concluded that the ALJ accurately characterized the plaintiff's impairments to the expert witness and affirmed the denial of benefits.
The Court likewise is satisfied in this case that the ALJ properly cataloged the plaintiff's limitations and included all of them in his hypothetical questions to the vocational expert.
After a de novo review of the entire record and the materials submitted by the parties, the Court concludes that the magistrate judge properly reviewed the administrative record and applied the correct law in reaching his conclusion. The Court agrees with the conclusion that substantial evidence supports the ALJ's determination that the plaintiff is capable of performing gainful activity.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt # 20] is ADOPTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 18] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt # 19] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.