KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff Tashanda Davis ("Plaintiff" or "Davis") challenges the final decision of Defendant, Carolyn M. Colvin, Acting Commissioner of Social Security ("Commissioner") denying her application for supplemental social security income ("SSI") under Title XVI of the Social Security Act . Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 15.
For the reasons stated below, the Commissioner's decision is
Davis filed her application for SSI on August 3, 2009, alleging a disability onset date of February 1, 2009. Tr. 106, 145. She alleged disability based on epilepsy, seizures, depression, panic attacks, and limited vision in right eye. Tr. 138. After denials by the state agency initially (Tr. 44, 54) and on reconsideration (Tr. 45, 64, 68), Davis requested a hearing (Tr. 71-73). A hearing was held before Administrative Law Judge Suzanne A. Littlefield ("ALJ") on July 19, 2011. Tr. 25-41. In her October 27, 2011, decision (Tr. 8-24), the ALJ determined that Davis is capable of performing past relevant work and is not disabled. Tr. 17-18. Davis requested review of the ALJ's decision by the Appeals Council and, on May 22, 2013, the Appeals Council denied her request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-4.
Davis was born in 1983 and was 28 years old on the date of the ALJ's decision. Tr. 106. Davis completed school through the 11th grade. Tr. 126. At the time of the administrative hearing, Davis had completed her GED coursework and was planning to take the GED test. Tr. 34-35.
Davis reported a history of seizures beginning in 2001 after the birth of her first child. Tr. 214. She reported in 2006 that she had been experiencing seizures every 1 to 2 months since 2001. Id. On July 23, 2006, Davis was taken by ambulance to University Hospitals of Cleveland. Id. The ambulance was called because Davis had two seizures at home. Id. Davis also had one seizure while in the ambulance. Id.
In January 2008, Davis first sought psychiatric treatment with Manjula Shah, M.D., at the Community Behavioral Health Center. Tr. 359. Dr. Shah initially diagnosed Davis with adjustment disorder, anxiety, depressed mood, and chronic panic attacks. Id. On June 9, 2008, Davis returned to Dr. Shah and reported that she was overwhelmed because of multiple stressors, health problems, racing thoughts, and she was experiencing panic attacks. Tr. 349-350. She also reported that clonazepam (Klonopin) was helping to reduce her anxiety and promote sleep. Tr. 349. On September 15, 2008, Davis reported "episodic high anxiety and distress because her Social Security ha[d] been denied." Tr. 347. She stated that she was experiencing financial hardship but was able to function with the support of her family. Id. She continued to report a benefit with the clonazepam. Id.
On January 8, 2009, and April 29, 2009, Davis again reported benefit with the clonazepam which she stated helped her sleep better. Tr. 345, 355. She reported worrying about her health and financial problems. Id. On July 2, 2009, Davis continued to report that the clonazepam was helping. Tr. 353. Davis's diagnosis was changed to major depression, recurrent, moderate to severe, with episodic panic attacks. Id. Davis's treatment plan, which had been to continue with the clonazepam and return in 6-8 weeks, was not changed. Tr. 354. On August 10, 2009, Davis reported episodic high anxiety panic attacks and low frustration tolerance. Tr. 365. On September 10, 2009, Davis reported that she episodically experiences auras which make her feel dizzy and uncomfortable. Tr. 363. She stated that her anxiety is not in good control. Tr. 363. Dr. Shah noted that "[t]his could be related to aura, but she is not sure." Id. On October 15, 2009, Davis continued to report high anxiety panic attacks, low tolerance to frustration, depression, and at times "`thoughts about life not worth living' but no plan." Tr. 433. Dr. Shah recommend Davis continue the clonazepam and start on Celexa. Tr. 434. The next two month Davis continued to report problems with high anxiety panic attacks and frustration. Tr. 429, 431. Dr. Shah recommended Davis continue the clonazepam and Celexa. Tr. 430, 432. Davis reported no side effects from the medications. Id. In February and April 2010, Davis continued to report high anxiety and low frustration tolerance but was "doing better with Celexa and clonazepam." Tr. 427.
On November 17, 2008, Dr. Shah completed a mental status questionnaire on Davis's behalf. Tr. 340-42. Dr. Shah opined that Davis had a poor ability to sustain concentration, persistence, and pace and a poor ability to react to the stress and pressures of work. Tr. 341. Dr. Shah also opined that Davis was limited in her social interaction. Id.
On April 21, 2010, Dr. Shah completed a mental capacity mental source statement on Davis's behalf. Tr. 421-22. In that statement, Dr. Shah opined that Davis had a poor ability to maintain attention and concentration; maintain regular attendance; interact with supervisors; deal with work stress; complete a normal work day or workweek; understand, remember, and carry out detailed or complex job instructions; manage funds; or leave home on her own. Id. Dr. Shah also opined that Davis had a fair ability to socialize; behave in an emotionally stable manner; relate predictably in social situations; understand, remember, and carry out simple job instructions; work in coordination with others without distraction; function independently without special supervision; relate to co-workers; deal with the public; respond appropriately to changes in routine settings; or use judgment. Id.
At the administrative hearing, Davis was represented by counsel and testified that she cannot work because of her seizure disorder. Tr. 32. She testified that she gets headaches, feels confused, and drained for a couple of days after a seizure. Id. Davis also testified that she gets migraines twice a week. Tr. 32. Davis testified that she receives psychiatric care from Dr. Shah for depression and panic attacks. Tr. 35. She stated that she has been experiencing attacks since 2002. Tr. 36. Davis testified that she did not receive treatment from Dr. Shah for a full year because she was pregnant at that time. Tr. 36-37. She stated that her psychiatric treatment, consisting of medication and counseling, has not helped. Tr. 37.
Davis stated that she took the course work for the GED test and was planning on taking the GED. Tr. 34. Davis testified that she previously worked at Party City in 2002 in a stock inventory position. Tr. 33. She stated that she was employed in that position as a seasonal employee for two or three months. Id. She also testified that she worked for Sea World in 1999 from June to August as a cashier in the gift shop. Tr. 33-34.
Vocational Expert Thomas Nimberger ("VE") testified at the hearing. Tr. 38-40. The VE testified regarding the exertional and skill level of Davis's past work as follows: cashier (light, unskilled) and retail stocker (light, semi-skilled). Tr. 39. The ALJ asked the VE if a hypothetical individual who could perform work at all exertional ranges but who would need to avoid all ladders, ropes, and scaffolding; avoid all unprotected heights or dangerous machinery due to seizure precautions; and who would be unable to drive commercial vehicles due to seizure precautions, could perform Davis's past work. Tr. 39-40. The VE stated that the hypothetical individual could perform both the cashier and retail stocker jobs.
The ALJ then asked the VE if a hypothetical individual could still perform Davis's past work if the following limitations were added to the first hypothetical: performance of routine tasks with few changes in routine, pace, or the tasks themselves and interaction with coworkers on a superficial basis without confrontational interactions. Tr. 40. The VE responded that the second hypothetical individual could perform both the cashier and retail stocker jobs. Id.
The VE was also questioned by Davis's attorney. Id. Davis's attorney asked the VE if there would be any jobs for a hypothetical individual who would miss an average of two to three days a month unscheduled. Id. The VE replied, "It at first would be a red flag, and eventually would preclude all work." Id.
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Furthermore:
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
20 C.F.R. §§ 404.1520, 416.920;
In her October 27, 2011, decision, the ALJ made the following findings:
Plaintiff argues that the ALJ erred in assigning "less weight" to the opinion of Davis's treating psychologist Dr. Shah. Doc. 16, pp. 11-15. Plaintiff also argues that the ALJ erred in finding that she can perform her past relevant work because her past relevant work did not rise to a substantial gainful activity level. Id. at pp. 15-18. In response, the Commissioner argues that substantial evidence supports the ALJ's evaluation of the medical opinion evidence and the ALJ's finding that Davis could return to her past relevant work. Doc. 17, pp. 11-19
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Secretary of Health and Human Services, 889 F.2d 679, 681 (6th Cir.1989) (per curiam) (citations omitted)). A 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).
Davis argues that the ALJ erred in determining that Dr. Shah's opinion is entitled to little weight. Doc. 16, pp. 11-15. On April 22, 2010, Dr. Shah filed out a mental capacity medical source statement on Davis's behalf and opined that she had a fair
Treating-source opinions must be given "controlling weight" if two conditions are met: (1) the opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques"; and (2) the opinion "is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2). Conversely, "[i]t is an error to give an opinion controlling weight simply because it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with other substantial evidence in the case record." Blakley v. Comm'r Of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); (citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2, 1996)).
Dr. Shah's 2010 opinion was expressed as checkmarks on a form without further explanation or clinical findings in support. Tr. 421-22. Dr. Shah's only comment was that Davis functions at home with the support of others due to her health-related problems, depression, anxiety, and panic attacks. Tr. 422. An ALJ is not bound by conclusory statements of doctors, particularly where they are unsupported by detailed objective criteria and documentation. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001); King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984)). As discussed further below, Dr. Shah's opinion is conclusory and not supported by objective criteria or his treatment notes. As such, it was proper for the ALJ to conclude that his opinion was lacking supportability and consistency.
When the treating physician's opinion is not given controlling weight, then the opinion is weighed based on the length, frequency, nature, and extent of the treatment relationship, as well as the treating source's area of specialty and the degree to which the opinion is consistent with the record as a whole and is supported by relevant evidence, 20 C.F.R. § 404.1527(c)(2)-(6). Although the regulations instruct an ALJ to consider these factors, they expressly require only that the ALJ's decision include "good reasons ... for the weight ... give[n] [to the] treating source's opinion"—not an exhaustive factor-by-factor analysis. Francis v. Comm'r Soc. Sec. Admin., 414 F. App'x 802, 804 (6th Cir. 2011) (quoting 20 C.F.R. § 404.1527(d)(2). Good reasons "must be supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406-407; Soc. Sec. Rul. 96-2p.
The ALJ provided "good reasons" for giving "less weight" to the 2010 opinion
Dr. Shah's treatment notes are inconsistent with the severe limitations noted in his opinion. As the ALJ noted, Davis continuously reported to Dr. Shah that her medication was decreasing her anxiety and helping her sleep. Tr. 345, 347, 353, 355, 427. Although Dr. Shah changed Davis's diagnosis in July 2009 from adjustment disorder to major depression, recurrent, the record does not indicate the reason for the change. Tr. 353. At that point, the treatment notes had been consistent regarding Davis's complaints and her treatment plan did not change before or after the change in diagnosis. Id. As the ALJ stated, the only notable difference reflected in the treatment notes during the time her diagnosis was modified was that Davis was stressed after being denied disability. Id., Tr. 16.
Davis points out that Dr. Shah continually assigned her a GAF score of 50,
Id. at pp. 16-17. As noted by the Commissioner, Dr. Shah's repetition of the same GAF score shows the highly subjective nature of the GAF determination because it failed to reflect the changes in Davis's condition over a multi-year period during which Dr. Shah's treatment notes showed improvement in her condition with medication and a change in diagnosis. Thus, the ALJ appropriately did not find the GAF dispositive of the disability determination.
Dr. Shah's opinion was also inconsistent with the medical opinions of Dr. House, Dr. Rivera, and Dr. Finnerty.
Further, the ALJ also determined that Davis's daily activities belie the severity of the limitations imposed by Dr. Shah. The ALJ found Davis only mildly restricted in her activities of daily living. The ALJ noted that Davis had no problems with personal hygiene, cleaning, doing laundry, cooking, and managing her finances with her mother's help. Tr. 14. Davis also reportedly cares for her three children whom she raises on her own with help from her mother and boyfriend. Id. The ALJ further noted that Davis had attended classes in order to complete her GED. Id. The ALJ's assessment is supported by the function report filled out by Davis herself in which she stated that she had no problems with her personal care, she completes household chores, takes care of her children, handles her finances, and gets outside everyday with help because of her seizures. Tr. 184-188.
Based on all of the above, substantial evidence supports the ALJ's finding that Dr. Shah's opinion was not entitled to controlling weight and the ALJ provided good reasons for giving "less weight" to the opinion which was "sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).
The Court concludes, however, that Gayheart does not apply to this case because the record does not reflect that the ALJ scrutinized the opinions of Davis's treating physician more closely than the opinions of the state agency consultants or applied a double standard in her evaluation of medical evidence. Hackle v. Colvin, 1:12-CV-145, 2013 WL 1412189 (S.D. Ohio Apr. 8, 2013). Consequently, the Court does not find that the ALJ's evaluation of the medical evidence is contrary to Gayheart.
The ALJ found that Davis could return to her past relevant work as a cashier or retail stocker. Tr. 17-18. To qualify as past relevant work, the work must have been performed in the last 15 years, have been performed long enough for the claimant to have learned to do it, and qualify as "substantial gainful activity" ("SGA"). 20 C.F.R. § 404.1560(b)(1), Tr. 18. Davis argues that the ALJ erred by finding that her employment as a cashier and retail stocker was past relevant work because it did not rise to SGA level. Doc. 16, p. 15.
Under the regulations, SGA is "work activity that is both substantial and gainful." 20 C.F.R. 404.1572. Substantial work is "activity that involves doing a significant physical or mental process." 20 C.F.R. § 404.1572(a). Work can be substantial if it is done on a part-time or seasonal basis. Id. Gainful work is "work activity that you do for pay or profit." 20 C.F.R. § 404.1572(b). The regulations provide that "generally," earnings are the primary factor in determining if work constitutes SGA. 20 C.F.R. § 404.1574. A claimant who earns more than a specific amount prescribed by the guidelines set forth in the regulations is presumed to have engaged in SGA. 20 C.F.R. § 404.1574(b)(2)(ii)(B); Tyra v. Sec'y of Health & Human Servs., 896 F.2d 1024, 1029 (6th Cir.1990). The claimant bears the burden of showing he was not engaged in SGA. Wright-Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 396 (6th Cir. 2010) (finding that it is plaintiff's "burden to rebut" the presumption in order to prevail). A claimant may rebut this presumption of SGA "by evidence of the nature of the applicant's work, the conditions of employment and the adequacy of the applicant's performance." Dinkel v. Sec'y of Health & Human Servs., 910 F.2d 315, 319 (6th Cir.1990) (citing 20 C.F.R. § 404.1573). For the time periods relevant to this case, the amounts necessary to create the SGA presumption are as follows: $780 per month in 2002,
When testifying about Davis's past relevant work, the VE referred to Exhibit 5E, Davis's disability application. Tr. 39, 139. In her application, Davis indicated that her past work as a stocker for a "party shop" was performed during a one-month period in June 2002.
Because we hold that substantial evidence supported the determination that Davis retained the RFC to perform her past relevant work as a stocker, we need not address Davis's additional argument that her employment at Sea World did not constitute past relevant work.
For the reasons set forth herein, the Court
