KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff Amie M. McCoy ("Plaintiff" or "McCoy") seeks judicial review of the final decision of Defendant Commissioner of Social Security ("Defendant" or "Commissioner") denying her applications for social security disability benefits. 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. 13.
The Court
On October 16, 2009, McCoy applied for Childhood Disability Benefits, Disability Insurance Benefits, and Supplemental Security Income. Tr. 123-125, 126-127, 270-279, 364-368, 369-377, 394-395, 397-398. She alleged a disability onset date of October 1, 2006 (Tr. 19), and alleged disability due to mental retardation, mental illness, problems functioning, suicidal thoughts, and increased need for sleep. Tr. 154, 157, 160, 163, 169, 173, 176, 370. McCoy's applications were denied initially (Tr. 154-162) and upon reconsideration by the state agency (Tr. 169-189). Thereafter, she requested an administrative hearing. Tr. 190.
On January 19, 2012, Administrative Law Judge Craig R. Petersen ("ALJ Petersen") conducted an administrative hearing. Tr. 86-122. On February 9, 2012, ALJ Petersen issued a decision denying benefits. Tr. 129-149. On April 6, 2012, McCoy requested review by the Appeals Council of the February 9, 2012, decision. Tr. 238-240. The Appeals Council granted McCoy's request for review and, on February 27, 2013, the Appeals Council concluded that ALJ Petersen had not adequately considered third party statements from McCoy's mother. Tr. 151-152. In addition, the Appeals Council noted that the vocational expert had admitted at the hearing that her testimony was based on input from another vocational expert who was not present at the hearing. Tr. 152. The Appeals Council remanded McCoy's case to an Administrative Law Judge for further proceedings, to obtain additional evidence, further consider McCoy's residual functional capacity, further evaluate the third party statements, and obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the occupational base. Tr. 150-153.
On remand, on January 9, 2014, Administrative Law Judge Gabrielle Vitellio ("ALJ") conducted an administrative hearing. Tr. 44-84. In her March 24, 2014, decision (Tr. 16-43), the ALJ determined that McCoy had not been under a disability from October 1, 2006, through the date of the decision and had not been under a disability at any time prior to the date she attained age 22. Tr. 20, 35. McCoy requested review of the ALJ's decision by the Appeals Council. Tr. 14-15. On September 13, 2015, the Appeals Council denied McCoy's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6.
McCoy was born in 1984. Tr. 270, 364. At the time of the January 9, 2014, hearing, McCoy was 29 years old (Tr. 47-48) and had been living in a house owned by her friend's dad for about four years
McCoy had three children, a 12 year-old daughter and 8 year-old twins. Tr. 48-49. McCoy's parents took guardianship of her 12-year old before the child was born and took guardianship of her twins when they were about 6 months old. Tr. 49. McCoy was living with her parents and children when the twins were born. Tr. 49. McCoy's parents reside in Cincinnati. Tr. 50. She sees her children every couple of months when her friend is able to take her to Cincinnati. Tr. 50, 63-64. Because of her mom's work schedule and dad's health condition, they do not bring her children to see her. Tr. 63. McCoy expressed some interest in trying to get her children back but is not sure she could handle it. Tr. 50.
In 1989, the Cincinnati Center for Developmental Disorders evaluated McCoy when she was four years old. Tr. 603-607. On standardized psychological testing, McCoy's age equivalent was 2 years and 6 months at a chronological age of 4. Tr. 603. Among other testing results, McCoy's intellectual functioning was estimated to be between the borderline and mild levels of delay. Tr. 603. McCoy's prognosis at that time was that she would continue to grow and develop but she would probably always be somewhat slower than most children her age. Tr. 603. Her outlook for developing language and learning skills appeared to be good with proper educational and behavioral intervention. Tr. 605. While in school, McCoy received special education services. Tr. 321-345. In 2001, when McCoy was 16, the school psychologist, as part of a three-year re-evaluation for students receiving special education services, recounted past intelligence testing scores and noted that it was "probable [McCoy's] general intelligence significantly interferes with academic progress." Tr. 326. McCoy finished twelfth grade but did not graduate from high school. Tr. 60. She quit school right before she graduated. Tr. 61. She had turned 18 years and just gave up and did not listen to her parents. Tr. 61.
McCoy last worked in 2012 for a few months at a factory making plastic totes. Tr. 54-55. Her job consisted of trimming the plastic off around the edges of the totes. Tr. 55. She was let go from her position because she was not performing the job as fast as her employer expected her to. Tr. 55-56. The machine kept clogging or breaking down because she was not moving fast enough. Tr. 56. Her past work also includes work at a business called Twist and Shout doing dishes and making ice cream cones or sundaes. Tr. 54. The job McCoy held longest was as a cashier at a United Dairy Farmers. Tr. 57-58. She worked there in 2000 or 2001 for almost a year. Tr. 57. Her mother was the manager of the store. Tr. 57. Her mother ended up quitting. Tr. 57. McCoy was only 16 or 17 years old at the time and her mom made her quit due to the problems her mother was having with the store. Tr. 57. McCoy also worked as a cashier at Wal-Mart. Tr. 58. When working as a cashier, at times, McCoy had to use a calculator for math. Tr. 58. McCoy has tried to look for work since 2012 but has not had any luck finding a job. Tr. 57-58.
On September 15, 2006, McCoy underwent an adult diagnostic assessment at TCN Behavioral Health Services ("TCN"). Tr. 470-478, 830-833. McCoy was seeking treatment for depression and bipolar symptoms. Tr. 470. She reported that she was having a lot of problems with severe depression with periods of being really hyper and feeling anxious. Tr. 470. She also reported problems with concentration and problems sitting still. Tr. 477. McCoy reported that she had used meth in the past but was no longer using. Tr. 470. McCoy's diagnoses included bipolar I disorder, most recent episode depressed, severe without psychotic features and amphetamine dependence, early full remission. Tr. 478. A GAF score of 42 was assigned.
An October 30, 2006, TCN progress note reflects that McCoy did not attend any AOD counseling sessions. Tr. 480. On November 15, 2006, McCoy was seen at TCN following an attempted overdose on Wellbutrin. Tr. 479, 486-487, 493-494, 540-543. Her boyfriend of 2 ½ years was involved in another relationship and broke up with her. Tr. 479. McCoy was mildly depressed with a full affect. Tr. 479. She was calm, relaxed and cooperative. Tr. 479. McCoy was admitted overnight at TCN's Creekside Services for observation. Tr. 479, 493-502, 809-810, 844-850. She was discharged on November 16, 2006. Tr. 493.
McCoy was discharged from TCN in May 2007 because she "did not return." Tr. 463. The discharge summary reflects that overall McCoy showed some improvement during her treatment. Tr. 464.
In March 2009, McCoy sought treatment with Scioto Paint Valley Mental Health Center ("Scioto"). Tr. 569-574. A diagnostic assessment was completed on March 31, 2009. Tr. 569-574. McCoy was living with her parents who had custody of her children. Tr. 572. McCoy reported that she had been experiencing anxiety and was irritable with her children a lot. Tr. 572. She wanted medication to help her with her anxiety. Tr. 572. McCoy did not think that counseling would help. Tr. 572-573. McCoy was diagnosed with mood disorder, NOS, and assigned a GAF score of 58. Tr. 574. Since McCoy was not interested in counseling, she was referred to her family doctor for medication. Tr. 573. On September 12, 2009, Scioto terminated its treatment relationship with McCoy because McCoy did not return for counseling with Scioto,. Tr. 567-568.
On June 28, 2011, McCoy saw James A. Gottfried, M.D., complaining of severe anxiety and panic attacks. Tr. 626-628. McCoy indicated that she had been having the problems for a year and she described her symptoms as moderate in severity. Tr. 626. She also reported having insomnia. Tr. 626. She denied suicidal ideation. Tr. 626. McCoy reported a history of major depression which she was treating with Prozac. Tr. 626. On examination, McCoy's mood and affect were normal and appropriate. Tr. 627. She was talkative and answered questions appropriately. Tr. 627. Her thought processes were normal. Tr. 627. She had no hallucinations, delusions or psychotic thoughts. Tr. 627. Dr. Gottfried assessed mild depression and anxiety disorder, generalized, and prescribed buspirone. Tr. 627.
On January 28, 2005, Dale Seifert, M.S. Ed., a licensed psychologist, interviewed and tested McCoy. Tr. 456-461. At the time of the interview, McCoy was 20 years old and unemployed. Tr. 460. McCoy was applying for disability benefits based on alleged mental retardation. Tr. 460. McCoy dropped out of high school and she did not obtain her GED. Tr. 460. Mr. Seifert indicated that McCoy's WAIS-III test results demonstrated that McCoy's cognitive skills fell in the lower limits of borderline intellectual functioning range. Tr. 460. Mr. Seifert indicated that McCoy's Wechsler Memory Scale-III test results showed that she had significant deficits in both immediate and delayed auditory memory and immediate and delayed visual memory. Tr. 460. McCoy's Woodcock-Johnson test results showed that McCoy's reading skills were on a beginning fifth grade level. Tr. 460. Mr. Seifert diagnosed McCoy with borderline intellectual functioning and he assessed a GAF score of 63.
Tr. 461.
On April 1, 2010, Thomas M. Evans, Ph.D., conducted a psychological evaluation. Tr. 577-582. At the time of the evaluation, McCoy was 25 years old. Tr. 577. McCoy reported that she had been enrolled in special education classes since the 1
Dr. Evans found that McCoy's ability to concentrate and pay attention to simple questions was not impaired based on her performance on the mental status examination. Tr. 580. Dr. Evans found that McCoy's ability to understand and follow simple, repetitive directions was not impaired but would likely be mildly impaired for more complex directions. Tr. 580. Noting that no testing was done, Dr. Evans opined that McCoy appeared to be of sub-average intelligence. Tr. 580. Dr. Evans further opined that McCoy's ability to withstand stress and pressure was mildly impaired considering her current depression. Tr. 580. He opined that McCoy's ability to relate to others and deal with the general public was moderately impaired in light of her anger and poor tolerance for frustration. Tr. 580. Dr. Evans also found that McCoy's insight into her then current situation and problems appeared to be adequate and her social judgment appeared to be fair. Tr. 580-581. Dr. Evans indicated that McCoy was able to fully participate in routine daily household activities. Tr. 581.
On June 10, 2013, Wayne Morse, Ph.D., conducted a psychological evaluation. Tr. 748-758. Dr. Morse completed a report dated June 10, 2013. Tr. 748-758. As part of the evaluation, Dr. Morse interviewed McCoy, reviewed past evaluations and assessments, performed a mental status examination, and performed an intellectual assessment, consisting of the Wechsler Adult Intelligence Scale — Fourth Edition (WAIS-IV). Tr. 748. At the time of the evaluation, McCoy was 28 years old. Tr. 749.
McCoy relayed that she had received disability benefits when she was a baby. Tr. 749. Her benefits had stopped but she did not know why. Tr. 749. She had been applying for benefits since 2007 and appealing the denials. Tr. 749. McCoy indicated that she was very unhealthy. Tr. 749. She reported having migraines, back pain and toothaches. Tr. 749. With no insurance, she was unable to get treatment. Tr. 749. McCoy's three children had always lived with her parents and they had custody of them. Tr. 749. She indicated that she would like to have her kids back but was not sure that she would be able to have the patience to deal with them. Tr. 749.
McCoy reported that she had been taking Prozac, Zoloft and Imitrex but had stopped because she had no insurance. Tr. 750. According to McCoy, she had only briefly tried mental health treatment. Tr. 751. She indicated that the medication was helpful but actual therapy was not. Tr. 751.
Dr. Morse found that McCoy provided consistent information but noted that there was evidence of symptom exaggeration, especially with respect to the intellectual assessment. Tr. 753. Dr. Morse diagnosed bipolar disorder, most recent episode depressed, moderate severity; panic disorder without agoraphobia; adjustment disorder with anxiety; learning disorder, NOS; and borderline intellectual functioning. Tr. 755. He assessed a GAF score of 60. Tr. 755. Dr. Morse noted that McCoy's self-reported symptoms of bipolar I disorder, anxiety, and learning problems was inconsistent with behavioral observations, collateral information, the mental status examination, and intellectual assessment. Tr. 755. He attributed the inconsistencies to McCoy's symptom exaggeration. Tr. 755. Dr. Morse concluded that there was no evidence to suggest that McCoy's mental health issues significantly interfere with her functioning. Tr. 755. McCoy's WAIS-IV full IQ score was a 69. Tr. 754. Dr. Morse opined that, due to McCoy's symptom exaggeration, her score was an underrepresentation of her true cognitive ability. Tr. 754.
In assessing McCoy's functional abilities, Dr. Morse opined:
Tr. 755-757.
Also, on June 20, 2013, Dr. Morse completed a Medical Source Statement of Ability to do Work-Related Activities (Mental). Tr. 759-761. In that statement, Dr. Morse opined that McCoy's ability to understand, remember, and carry out instructions was not affected by her impairment. Tr. 759. Dr. Morse opined that McCoy had mild impairments in her ability to interact appropriately with supervision, co-workers, and the public, as well as respond to changes in the routine work setting. Tr. 760. In explaining his opinion, Dr. Morse stated that "claimant self-reported difficulty with social interaction and difficulty finishing tasks in a timely manner due to her anxiety. However, she exaggerated her symptomatology." Tr. 760. Dr. Morse also indicated that "claimant reported great difficulty with her concentration, performed poorly on the attention tasks of the mental status examination, and performed poorly on the attention tasks of the WAIS-IV" but added that "claimant exhibited clear signs of symptom exaggeration, providing an underrepresentation of her true cognitive ability and capacity for attention. Her capacity for attention is only slightly impaired." Tr. 760.
On April 19, 2010, state agency reviewing psychologist Melanie Bergsten, Ph.D., completed a Psychiatric Review Technique. Tr. 583-596. Also, on April 19, 2010, Dr. Bergsten completed a Mental RFC Assessment. Tr. 597-600. In the Psychiatric Review Technique, Dr. Bergsten opined that McCoy did not have a listing level impairment but concluded the McCoy had the following conditions: depressive disorder, NOS; borderline intellectual functioning (full scale IQ score of 72); and a history of meth dependence. Tr. 586-587, 591. Dr. Bergsten rated McCoy's functional limitations, concluding that McCoy had mild limitations in activities of daily living and moderate limitations in maintaining social functioning and maintaining concentration, persistence or pace. Tr. 593. There were no episodes of decompensation. Tr. 593. In the Mental RFC Assessment, Dr. Bergsten rated McCoy's functional abilities in 20 categories.
In assessing McCoy's mental RFC, Dr. Bergsten found McCoy's statements partially credible, noting that McCoy had alleged mental retardation but the evidence in the file was more consistent with borderline intellectual functioning. Tr. 599. In narrative form, Dr. Bergsten opined that McCoy had "the ability to perform simple, repetitive tasks in situations where duties are relatively static and changes can be explained. She is also capable of relating to a few familiar others on a superficial basis." Tr. 600.
On reconsideration, on July 12, 2010, state agency reviewing psychologist, Suzanne Castro, Psy. D., concluded that there were "no new evidence to indicate changes in severity from the 4/19/2010 assessment." Tr. 601.
McCoy was represented at and testified at the January 9, 2014. Tr. 47-76.
McCoy stated that she felt she was unable to work because she is unable to perform jobs fast enough, cannot comprehend how to perform jobs correctly, or gets aggravated with jobs. Tr. 69-70. She explained that it takes her a minute to be able to truly understand something, stating that she has a hard time comprehending and gets confused. Tr. 70, 75. As far as her ability to comprehend, McCoy indicated that she has trouble comprehending most everything and explained that if she reads something she cannot tell you what she has just read. Tr. 60. In the past, when she asked for extra explanation at a job, the response would be "hang on a minute" or they would get aggravated with her. Tr. 75. While working past jobs, McCoy has felt overwhelmed. Tr. 75-76. She stated that it was hard for her to explain but she gets overwhelmed and confused. Tr. 76. She did not know where to begin and end — she would know that she needed to move faster but could not. Tr. 76.
Other than her friend who lives downstairs from her, McCoy's support includes her friend's father and friend's girlfriend. Tr. 50. She met her friend through another friend when she was living down in Southern Ohio. Tr. 51. She ended up moving north to get away from the drugs and partying that was going on in her life. Tr. 51. Her drug of choice was meth. Tr. 51. Since moving away from that environment she has been able to stay off of the drug. Tr. 51. In 2007 or 2008, when she was just getting off of meth, she was depressed and her boyfriend was breaking up with her. Tr. 61. She attempted to hurt herself by taking a bottle of Wellbutrin CR, which had been prescribed to her at the time. Tr. 61-62. She ended up at the Christopher House in Xenia for three or four days. Tr. 61. Since that incident, McCoy has not tried to hurt herself. Tr. 62. She has not been in therapy but has wanted to see a counselor or psychiatrist so she can get medication for depression and anxiety. Tr. 62. However, since she does not have insurance or money, she cannot get in to see anyone. Tr. 62. She had previously been prescribed Prozac and, when she was taking it, she felt more relaxed about things. Tr. 62-63.
With respect to activities of daily living, McCoy indicated that her friend who lives downstairs from her friend and his girlfriend Tiffany help out with things such as cooking, grocery shopping and keeping the house clean. Tr. 65. McCoy does not trust herself using a stove because, when she used the stove in 2010, she caught the kitchen cabinet on fire. Tr. 65. She had a skillet on the stove that she forgot about when she went outside. Tr. 65. When she returned from outside, the kitchen cabinet above the stove was on fire. Tr. 65. She yelled downstairs for her friend and he was able to put the fire out. Tr. 65-66. McCoy looks online for recipes and Tiffany helps her prepare the recipes. Tr. 67. Also, Tiffany normally helps her with cleaning the house. Tr. 66. McCoy can do some cleaning but gets overwhelmed with the task feeling like there is too much to do and too much dust. Tr. 66-67. McCoy reported needing help with shopping because, if she goes shopping, she ends up buying things, e.g., junk food, she really does not need. Tr. 66. Also, she stated that she is afraid to drive to the store because it is far away. Tr. 66. McCoy is able to drive but does not like to drive very far because dealing with traffic makes her nervous. Tr. 53-54. McCoy reported having to take her driver's test four times before passing. Tr. 59. She later lost her license and had to retake the test in 2011 and passed the test the first time. Tr. 59-60.
McCoy spends time doing crossword puzzles, looking online for recipes, using Facebook, and playing a connect-the-dots game. Tr. 67-68. She recently started a new craft using yarn. Tr. 68. McCoy will watch the news but she usually does not watch movies because she gets bored or sleepy. Tr. 68. McCoy's friends who live downstairs from her do not go out often themselves and McCoy prefers to stay home because she finds staying home to be more comfortable and she does not have to deal with people getting on her nerves. Tr. 68-69. Without her depression and anxiety medication, McCoy feels that people get under her skin a lot easier. Tr. 69. As an example, she indicated that standing in line for a long time while someone in front of her is using a lot of coupons would get on her nerves. Tr. 69. She really only leaves her home to go to the gas station or store and to visit her parents every couple months. Tr. 68.
McCoy indicated that she had been experiencing migraine headaches every other or every day for about seven or eight months. Tr. 72-74. She had been seeing a neurologist and was taking Imitrex which made her sleepy but otherwise had helped. Tr. 73. She lost her insurance and did not have the funds to continue with the treatment or medication. Tr. 73. When she gets a migraine, she tries to manage it and if she cannot she has sought treatment at the emergency room. Tr. 73-74.
Vocational Expert James Fuller ("VE") testified at the hearing. Tr. 76-83, 451. Before questioning the VE, the ALJ stated that whether or not McCoy's past factory work would be considered past relevant work was not pertinent because the ALJ was not going to allow for jobs requiring high production quotas. Tr. 77. The ALJ then asked the VE to consider the following hypothetical:
Tr. 77.
McCoy's attorney asked the VE about the "no high production quotas" portion of the hypothetical question and the VE indicated that he understood the limitation of "no high production quotas" to mean that "pace is not dictated by an external source." Tr. 80. The VE explained that different employers would have different daily production requirements. Tr. 80. As an example, the VE explained that a dishwasher would be expected to wash dishes, not necessarily immediately upon the dishes coming in but there would an expectation over the course of the day that the work would be generally consistent and completed at the end of the employee's shift. Tr. 80. The VE agreed that you could have an instance where a dishwasher working at a restaurant on a busy night would have to work at a faster pace than a worker working on an assembly line being run at a slow pace. Tr. 81. In response to questions from McCoy's counsel, the VE also confirmed that he understood the social restrictions in the ALJ's hypothetical to be "no public contact, occasional coworker and supervisor" and occasional to mean up to one-third of the work day. Tr. 82. With respect to unskilled work, the VE stated that supervision for one-third of the work day is generally adequate, even during a training period. Tr. 82.
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)(A).
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 March 24, 2014, decision, the ALJ made the following findings:
Based on the foregoing, the ALJ determined that McCoy had not been under a disability from October 1, 2006, through the date of the decision, and not under a disability, at any time prior to the date McCoy attained age 22. Tr. 35-36.
McCoy argues that the ALJ did not properly explain the weight given to portions of the opinions of state agency reviewing psychologists Drs. Bergsten and Castro regarding McCoy's ability to adapt to changes and relate to a few familiar others superficially and/or erred by not including restrictions for limitations with respect to adapting to changes and relating to a few familiar others superficially. Doc. 15-1, pp. 16-20, Doc. 21, pp. 2-4. Next, McCoy argues that the ALJ erred in the manner in which the ALJ weighed and discussed various GAF scores. Doc. 15-1, pp. 20-22, Doc. 21, pp. 4-5. Lastly, McCoy contends that the ALJ's RFC finding that McCoy could not maintain "fast-paced production quotas" was inconsistent with the text of the ALJ's decision, which referred to "production quotas mandated by an external source" and the ALJ erred in relying on VE testimony that excluded only those jobs in which the pace was driven by an "external source." Doc. 15-1, pp. 23-24, Doc. 21, pp. 5-7.
In response, the Commissioner argues that the ALJ reasonably evaluated the medical opinion evidence and was not required to adopt Drs. Bergsten's and Castro's opinions verbatim. Doc. 18, pp. 9-11. The Commissioner also argues that the ALJ reasonably considered McCoy's GAF scores. Doc. 18, pp. 12-14. Finally, the Commissioner argues that the ALJ reasonably relied upon the VE's testimony and the VE did not narrow or alter the pace restriction from prohibiting high-production quotas to prohibiting only fast-paced production quotas determined by an external source. Doc. 18, pp. 14-16.
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. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
The Commissioner's findings "as to any fact if supported by substantial evidence shall be conclusive." McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence supports a claimant's position, a reviewing court cannot overturn the Commissioner's decision "so long as substantial evidence also supports the conclusion reached by the ALJ." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, 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).
McCoy argues that the ALJ gave "overall great weight" to the opinions of state agency non-examining psychologists Drs. Bergsten and Castro but failed to include in the RFC or adequately explain the reasons for not including limitations to account for all restrictions noted in the opinions of Drs. Bergsten and Castro. Doc. 15-1, pp. 16-20, Doc. 21, pp. 2-4. More particularly, McCoy contends that the ALJ should have adopted the psychologists' specific opinions about changes in duties, i.e., "duties are relatively static" and "changes can be explained," and about relating to others, i.e., "relating to a few . . . others" and relating "on a superficial basis." Doc. 15-1, p. 17.
As non-examining reviewing psychologists, Drs. Bergsten and Castro did not have an ongoing treatment relationship with McCoy and therefore their opinions were not entitled to deference or controlling weight under the treating physician rule. See Kornecky v. Comm'r of Soc. Sec, 167 Fed. Appx. 496, 508 (6th Cir. 2006); Daniels v. Comm'r of Soc. Sec., 152 Fed. Appx. 485, 490 (6th Cir. 2005). It is the ALJ's responsibility to evaluate the opinion evidence using the factors set forth in 20 C.F.R. § 404.1527. See 20 C.F.R. § 404.1527(c). Those factors include (1) the length of the treatment relationship and the frequency of the examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the consistency of the opinion with the record as a whole, (5) the specialization of the source, and (6) any other factors that tend to support or contradict the opinion. Id. However, even when the opinion at issue was rendered by a treating physician, which is not the situation in this case, the ALJ is not obliged to include in her decision an exhaustive factor-by-factor analysis of the factors. See Francis v. Comm'r of Soc. Sec., 414 Fed. Appx. 802, 804 (6th Cir. 2011).
Drs. Bergsten opined as follows regarding McCoy's abilities:
Tr. 600. Dr. Castro affirmed Dr. Bergsten's assessment. Tr. 601.
Although Drs. Bergsten and Castro were not treating psychologists, the ALJ considered their opinions consistent with the Regulations and explained the weight assigned to them, stating:
Tr. 33.
The ALJ concluded that the evidence supported an RFC with the following restrictions:
Tr. 24.
While the ALJ's RFC assessment is not identical to the opinions of Drs. Bergsten and Castro, the Regulations make clear that a claimant's RFC is an issue reserved to the Commissioner and the ALJ assesses a claimant's RFC "based on all of the relevant evidence" of record. 20 C.F.R. §§ 404.1545(a); 404.1546(c). It is the responsibility of the ALJ, not a physician, to assess a claimant's RFC. See 20 C.F.R. § 404.1546(c); Poe v. Comm'r of Soc. Sec., 342 Fed. Appx. 149, 157 (6th Cir.2009). The ALJ "is not required to recite the medical opinion of a physician verbatim in his residual functional capacity finding [and] an ALJ does not improperly assume the role of a medical expert by assessing the medical and nonmedical evidence before rendering a residual functional capacity finding." Id. (internal citations omitted); see also Coldiron v. Comm'r of Soc. Sec., 391 Fed. Appx. 435, 439 (6th Cir. 2010) ("The Social Security Act instructs that the ALJ—not a physician—ultimately determines a claimant's RFC").
Moreover, even where an ALJ provides "great weight" to an opinion, an ALJ is not required to adopt wholesale limitations contained therein. Moore v. Comm'r of Soc. Sec., 2013 WL 6283681, * 7-8 (N.D. Ohio Dec. 4, 2013) (M.J. White) (even though the ALJ did not incorporate into the RFC all limitations from a consultative examiner's opinion that the ALJ assigned great weight to, the ALJ's decision was not procedurally inadequate nor unsupported by substantial evidence); see also Smith v. Comm'r of Soc. Sec., 2013 WL 1150133, * 11 (N.D. Ohio Mar. 19, 2013) affirmed, 6th Cir. 13-3578 (Jan. 30, 2014) (ALJ not obligated to explain each and every limitation or restriction adopted or not adopted from a non-examining physician's opinion).
While the ALJ did not adopt each and every limitation from the opinions of Drs. Bergsten and Castro, the ALJ did not ignore their opinions nor did the ALJ fail to explain the weight provided to their opinions. Furthermore, the ALJ accounted for limitations in both concentration, persistence and pace as well as social interaction and, as discussed above, although the ALJ provided "overall great weight" to the opinions of Drs. Bergsten and Castro, the ALJ was not obligated to adopt the opinions verbatim. Moreover, the ALJ's RFC is supported by substantial evidence. For example, the ALJ relied upon the consultative examiners' opinions to support the social limitations in the RFC and to support her conclusion that McCoy was capable of performing simple, routine and repetitive tasks. Tr. 23, 27, 28-29, 580, 755. More particularly, Dr. Morse opined that "there was no evidence to suggest that [McCoy] is unable to respond appropriately to changes in the work setting . . ." Tr. 29, 756. This provides support for the ALJ's RFC (Tr. 24) which did not include the limitations from Dr. Bergsten and Castro's opinions of "situations where duties are relatively static and changes can be explained." (Tr. 600).
Based on the foregoing, McCoy has failed to demonstrate reversible error with respect to the ALJ's weighing of the state agency reviewing psychologists' medical opinions.
McCoy takes issue with the ALJ's consideration of and weighing of various GAF scores assigned to McCoy. Doc. 15-1, pp. 20-22; Doc. 21, pp. 4-5. McCoy contends that, in light of the fact that GAF scoring has been discontinued by the latest edition of the DSM-V
As recently summarized by another court in this District, the Sixth Circuit has taken a case-by-case approach regarding the value of GAF scores and held that a "GAF score is not essential to the RFC's accuracy . . . a GAF score may be of considerable help to the ALJ in formulating the RFC." See Walsh v. Colvin, 2016 WL 1752854, * 15-16 (N.D. Ohio May 3, 2016) (internal citations and quotations omitted). Nevertheless, an ALJ is "not . . . required to place any particular amount of weight on a GAF score . . . [and] the failure to reference a GAF score is not, standing along, sufficient ground to reverse a disability determination." Id. at * 16 (internal citations and quotations omitted). In Walsh, the claimant relied upon the same administrative guidance relied upon by McCoy in this case to argue that the ALJ did not properly weigh the GAF scores. Id. at * 16. The court in Walsh noted that the "SSA's directives in AM-13066 and AM-13066 REV[
In this case, the ALJ did acknowledge the various GAF scores and provided reasoned explanations for the weight assigned to the GAF scores. Tr. 32-33. Moreover, the ALJ did not solely rely upon the GAF scores to formulate the RFC assessment and, even if the ALJ's discussion and weighing of the GAF scores was imperfect,
Based on the foregoing, remand and reversal is not warranted for further consideration of the various GAF scores.
McCoy argues that the Step Five determination is not supported by substantial evidence and remand is necessary because the ALJ's RFC and decision and the VE testimony are inconsistent with respect to pace limitations. Doc. 15-1, pp. 23-24; Doc. 21, pp. 5-6.
"In order for a vocational expert's testimony in response to a hypothetical question to serve as substantial evidence . . . the question must accurately portray a claimant's physical and mental impairments. The hypothetical questions, however, need only incorporate those limitations which the ALJ has accepted as credible." Parks v. Social Sec. Admin., 413 Fed. Appx. 856, 865 (6th Cir. 2011) (citing Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010) and Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)). Also, substantial evidence does not support an ALJ's decision to deny disability benefits where the VE's testimony is unclear. Barker v. Astrue, 2010 WL 2710520, * 6 (N.D. Ohio July 7, 2010) (remanding case due to lack of substantial evidence where VE's testimony was unclear); see also D'Angelo v. Comm'r of Soc. Sec., 475 F.Supp.2d 716, 724 (W.D. Mich. 2007) (recommending remand, in part, because VE's testimony was unclear); Welch v. Astrue, 2011 WL 4632922, * 3 (N.D. Ohio Sept. 30, 2011) (court unable to find Step Four determination supported by substantial evidence where VE testimony was not clear).
Here, the ALJ's RFC included a limitation of "work with no high production quotas" (Tr. 24) and the VE hypothetical question that the ALJ posed to the VE included a limitation of "no high production quotas on the job." (Tr. 77). The VE indicated that there would be jobs available that the described individual could perform, including packager, dishwasher, and cleaner. Tr. 77. The ALJ then sought clarification from the VE that the jobs identified, with specific reference to packager, would not require high production quotas on an assembly line. Tr. 77-78. The VE clarified that the packager job identified was a hand packager position that would require an expectation of production throughout the day that would not be determined by an external source. Tr. 78. In response to further questioning by McCoy's counsel, the VE indicated that he understood the limitation of "no high production quotas" to mean that "pace is not dictated by an external source." Tr. 80. Further, the VE agreed that certain employers for at least one of the identified jobs, i.e., dishwasher, could require a high level of productivity even when expectations regarding production are not be controlled by an external source. Tr. 80-81. This testimony by the VE makes it unclear whether the VE was providing testimony in response to the hypothetical question which contained a limitation of "work with no
The ALJ acknowledged the VE's testimony that there would be expectations for any job position; i.e., that a dishwasher would be expected to have dishes washed by the end of the day but without an expectation that the dishes be washed immediately. Tr. 34. The ALJ also acknowledged that different employers would have different expectations. Tr. 34. However, the ALJ's acknowledgements of the VE's further explanation of production expectations does not serve to clarify the VE testimony or make clear that the Step Five determination is supported by substantial evidence. This is particularly so because the ALJ concluded that "[t]he cognizant fact is that the representative positions identified by the vocational expert do not have any production quotas mandated by an external source and permit an individual to have some work variance . . ." Tr. 35. This statement does not make clear that the VE identified jobs involving work with no
Based on the unclear VE testimony and uncertainty as to whether the VE identified jobs in response to a VE hypothetical that accurately reflected the RFC limitations or whether the VE was responding to a modified or alternate hypothetical, the Court cannot determine whether the ALJ's Step Five determination is supported by substantial evidence. Accordingly, remand is necessary for clarification as to the RFC limitation regarding production quotas and/or for additional VE testimony responsive to a VE hypothetical that clearly and accurately portrays the limitations as contained in the RFC.
For the reasons set forth herein, the Court
