JEFFREY J. HELMICK, District Judge.
This matter is before me on Plaintiff's objections (Doc. No. 19) to the September 26, 2016 Report and Recommendation of the Magistrate Judge (Doc. No. 17). Also before me is the Defendant's response to Plaintiff's objections. (Doc. No. 20).
As there are no objections to the procedural history, evidence, medical evidence, plaintiff's testimony and the vocational expert's testimony of the Report, I adopt it in its entirety.
Grisier protectively filed an application for DIB on September 19, 2012.
In her August 14, 2014, decision (Tr. 90-105), the ALJ determined that Grisier was not under a disability from December 31, 2007, through June 30, 2010, her date last insured (Tr. 93, 99-100). Grisier requested review of the ALJ's decision by the Appeals Council. Tr. 1-2. On August 11, 2015, the Appeals Council denied Grisier's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 3-6.
Grisier was born in 1970 and was 43 years old at the time of the hearing. Tr. 13, 184, 201. Grisier attended school up until the tenth grade. Tr. 15. She is able to read and write. Tr. 15.
At the time of the hearing, Grisier was married and living with her husband. Tr. 13-14. Her two stepdaughters lived with them on occasion. Tr. 14. She has two adult children, ages 25 and 22 at the time of the hearing. Tr. 14. She also has grandchildren. Tr. 14. She was previously married. Tr. 14, 385. During the period of time between December 31, 2007, and June 30, 2010, Grisier was married to a previous husband and living with him. Tr. 14-15.
Grisier last worked in 2011 at a Domino's in Georgia. Tr. 16. She worked there for two weeks delivering pizzas. Tr. 16. Her job at Domino's ended because she moved from Georgia to Ohio. Tr. 38. Grisier does not think that she would have been able to sustain that job even if she had not moved to Ohio because it was hard for her to stand on her feet. Tr. 38-39. She also worked at a Marco's making and delivering pizzas
In April 2005, Grisier was injured while working at a drive-through store. Tr. 289. She was stacking some beverages and 12-packs fell on her back. Tr. 289. Grisier sought and received treatment for the injury to her back, including physical therapy. Tr. 289-290, 307-309. During a consult with Dr. Larry Kennedy, M.D., on July 8, 2005, for her back injury, Dr. Kennedy noted that Grisier indicated she was "currently seeking disability and, in fact, she does not have a goal for returning to any work place." Tr. 289. Dr. Kennedy concluded that Grisier's prognosis was "poor for improvement, particularly when apparently it is in her best interest to remain disabled in order to obtain disability, which apparently is her goal." Tr. 290. Dr. Kennedy advised that, if disability was Grisier's goal, he did not think physical therapy or other treatment would help her but, if she wanted to get better, he thought she could. Tr. 290. On July 26, 2005, physical therapy was discontinued due to Grisier's lack of attendance. Tr. 307. In March 2006, Grisier returned to see her primary care physician Dr. Diane Conrad, M.D., due to a flare up in her acute lumbar strain. Tr. 287. She reported that she had started to feel better with the physical therapy sessions and time but had recently been doing some light pizza delivery work and was experiencing bilateral lower back pain. Tr. 287. Grisier planned to return to physical therapy and was provided prescriptions for Naprosyn and Flexeril. Tr. 287. Dr. Conrad also suggested that Grisier follow up with Dr. Kennedy. Tr. 287. During the visit, Grisier complained of headaches. Tr. 287. Dr. Conrad agreed to work with Grisier regarding her headaches, noting they would have to plan an evaluation outside of her workers compensation claim. Tr. 287.
After her date last insured,
On April 10, 2012, following a March 22, 2012, sexual assault by a male whom Grisier met online, Grisier sought outpatient therapy at the Maumee Valley Guidance Center to reduce symptoms of depressive disorder, NOS, and PTSD. Tr. 328-329. She relayed that she was also sexually assaulted at age 15. Tr. 328. She reported a history of intermittent depression and was interested in counseling to overcome her issues. Tr. 328. Anne Mallett, MSW, LISW, the therapist conducting the initial session with Grisier diagnosed depressive disorder, NOS, and PTSD. Tr. 329. She assessed a GAF score of 50.
During an April 28, 2012, emergency room visit, Grisier complained of anxiety, a seizure and chest pain. Tr. 447-473. Grisier reported that she had gotten into an argument with her daughter. Tr. 450. Grisier indicated that she had become anxious and when she gets anxious she has seizures. Tr. 450, 452. The emergency room notes reflect a history of syncope with stress and anxiety, a hole in her heart, cancer and pseudoseizures. Tr. 452. Grisier was diagnosed with having an anxiety attack and was advised to follow up with her family doctor. Tr. 453.
On September 10, 2012, Grisier's therapy at Maumee Valley Guidance Center was terminated because Grisier had not returned and attempts to contact her were not successful.
On December 12, 2012, Dr. Neil S. Shamberg, Ph.D., conducted a consultative psychological evaluation. Tr. 384-390. Most of the information provided to Dr. Shamberg was based on Grisier's self-reports during the interview that Dr. Shamberg conducted. Tr. 384. Dr. Shamberg found Grisier's reliability to be very good based on there being good internal consistency and a close correspondence between collateral data and Grisier's own self-reports. Tr. 389. Grisier relayed that she had been married and divorced twice, with both ex-husbands being abusive. Tr. 389. Dr. Shamberg diagnosed Grisier with major depressive disorder, recurrent, currently severe, with some psychotic features; post-traumatic stress disorder; panic disorder with agoraphobia; social phobia; and anxiety disorder, NOS. Tr. 388. Dr. Shamberg indicated that Grisier also suffered from psychosocial and environmental problems, noting that she was still haunted by her abusive ex-husbands and two rapes; she had problems with her daughter-in-law; and she was worried that her doctors had not come up with a cause for her panic attacks and seizures. Tr. 389. Dr. Shamberg assigned a GAF score of 45. Tr. 389. He assessed Grisier's functional abilities, opining that:
Tr. 390.
On January 16, 2013, state agency reviewing psychologist Tonnie Hoyle, Psy.D., completed two psychiatric review techniques (a PRT and PRT2) (Tr. 58-60) and mental RFC (Tr. 60-61). The PRT was for the date last insured of June 30, 2010, and the PRT2 was a "current evaluation." Tr. 58. For the PRT, Dr. Hoyle concluded that there was no medically determinable mental impairment established, noting there was no medical evidence available from December 31, 2007, through June 30, 2010. Tr. 58. For the PRT2, Dr. Hoyle concluded that Grisier had moderate restrictions in activities of daily living and in maintaining social functioning and marked difficulties in maintaining concentration, persistence or pace. Tr. 59. Dr. Hoyle gave great weight to Dr. Shamberg's December 21, 2012, opinion which provided "current clinical findings and observations." Tr. 60. Dr. Hoyle also completed a mental RFC which was a "current evaluation." Tr. 60-61. In that mental RFC, Dr. Hoyle concluded that Grisier was markedly limited in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Tr. 61. Dr. Hoyle also opined that she expected that Grisier's anxiety symptoms would interfere with her ability to consistently perform even simple routine work activities on a sustained basis. Tr. 61.
On reconsideration, on April 4, 2013, state agency reviewing psychologist Kristen Haskins, Psy.D., completed a psychiatric review technique, finding that there was no medically determinable mental impairment established prior to the date last insured of June 30, 2010. Tr. 72. As did Dr. Hoyle, Dr. Haskins indicated that there was no medical evidence available from December 31, 2007, through June 30, 2010. Tr. 72. Dr. Haskins gave great weight to Dr. Shamberg's December 21, 2012, opinion which provided "current clinical findings and observations." Tr. 73. Dr. Haskins did not complete a mental RFC. Tr. 73.
Grisier testified and was represented at the hearing by an attorney. Tr. 9-10, 13-39. In 2005, while working at a drive-through store, Grisier was injured while stocking the coolers. Tr. 20-21. Someone had not properly stacked 12-packs of pop and, when Grisier was bending down to pick of bottles of pop to stock, she bumped the improperly stocked 12-packs of pop and they fell on her. Tr. 21. She suffered injuries to her back and legs. Tr. 21. Grisier went to the emergency room and she did some physical therapy. Tr. 21.
Grisier was seeing a neurologist, Dr. Chang, for seizures but stopped seeing him shortly before the administrative hearing that was held in July 2014 because Dr. Chang felt that there was nothing further he could do for Grisier's seizures. Tr. 22. Grisier indicated that Dr. Chang advised her that her seizures were not based on epilepsy but rather were based on how she was treated in the past and were mental health related. Tr. 22. She still continues to have seizures but is not always sure when she is having one or how long they last. Tr. 25.
Grisier stated she was supposed to be seeing a psychiatrist or therapist but she had not made any appointments as of July 11, 2014, the hearing date. Tr. 23. Grisier's primary care physician Dr. Reiter
During the period of time between December 31, 2007, and June 30, 2010, Grisier was not always able to take a shower and get dressed by herself because she had trouble getting motivated and being able to walk. Tr. 26. She has been able to gradually increase her ability to do things on her own. Tr. 26. She helped care for her children at times and took care of two cats. Tr. 26. She was able to take care of household chores such as cleaning, dusting and vacuuming but had a difficult time doing so. Tr. 26-27, 30-31. She would start chores and have to stop and rest for 15-20 minutes before starting back up again. Tr. 31. She would take Tylenol to help with the pain and try to start up her chores again. Tr. 31. Her husband at the time took care of the grocery shopping, errands and paying bills. Tr. 27. He was controlling and did not want her to leave the house. Tr. 27, 38. Her husband would leave her a list of chores and tell her when the chores would need to be completed. Tr. 31. If she did not follow her husband's instructions, he would hit her.
Grisier did not have health insurance when she was initially going through treatment for her back so she mostly paid out of pocket for her medical care. Tr. 37. Her husband initially allowed her to get treatment for her back but eventually he did not let her continue with treatment because he did not want to pay the bills. Tr. 37-38.
Vocational Expert Joey M. Kilpatrick ("VE") testified at the hearing. Tr. 39-49, 93, 180-182. The VE described Grisier's past work, including (1) a pizza delivery driver, an SVP 2,
The ALJ asked the VE to assume a hypothetical individual of Grisier's age and with her education and work experience and with the following limitations: lift and carry 20 pounds occasionally and 10 pounds frequently; stand or walk for 6 out of 8 hours; sit for 6 out of 8 hours; frequently push or pull; frequently climb stairs, balance, stoop, kneel, crouch, and crawl; no climbing ladders; and no exposure to hazards (moving machinery and unprotected heights). Tr. 42. The ALJ then asked the VE whether the described individual would be able to perform Grisier's past relevant work. Tr. 42. The VE indicated that the described individual could perform the fast food worker, cashier II, and food sales clerk positions as generally performed and as actually performed. Tr. 42-43. The VE also indicated that the described individual could perform Grisier's past work as a kitchen helper as Grisier performed that position. Tr. 43.
With the addition of a sit or stand at will option, the VE indicated that the hypothetical individual would not be able to perform Grisier's past relevant work but there would be light level jobs in the region or nation that the hypothetical worker with the sit/stand at will option could perform, including information clerk, ticket seller, and mail clerk.
The ALJ asked the VE for information regarding customary tolerances for unexcused 7absences and allowances for breaks. Tr. 45. The VE explained that 1½ days per month is an acceptable amount of unexcused absences — 2 days or more is not. Tr. 45. As far as breaks, the VE indicated typical breaks include a 15 minute break after 1 hour and 45 minutes of work and a 30-60 minute break after 4 hours of work. Tr. 45. The VE also indicated that being off-task 15% of more of the time during an 8-hour day is not acceptable. Tr. 45.
In response to questions from Grisier's counsel, the VE indicated that in the light semi-skilled and unskilled and sedentary semi-skilled and unskilled occupational bases, normally, there might be an allowance for one unscheduled break a day for 10 minutes or less. Tr. 46. Counsel asked the VE to assume a hypothetical individual who would have to be reminded by a supervisor every 15 minutes to stay on task and whether there would be competitive employment for that individual. Tr. 46. The VE responded that such a limitation would not be tolerated in the national or regional economy. Tr. 46. Counsel then asked the VE whether there would be any jobs available to a hypothetical individual limited as follows: light work, only unilateral hearing, no peripheral left vision and no binocular vision, sit/stand at will, no crouching, crawling, and kneeling, no bending at the waist, no detailed instructions (i.e., limited to simple and routine work processes), only incidental contact with the general public, supervisors, and coworkers, and unable to accept instructions from supervisors. Tr. 47. The VE indicated that there would be no jobs available in the national or regional economy. Tr. 47. In response to further questioning by Grisier's counsel, the VE indicated that the most preclusive limitation contained in that hypothetical was the inability to work around supervisors or take instructions. Tr. 48. Finally, Grisier's counsel asked the VE hypotheticals regarding sit/stand options to which the VE responded that, if an individual needed to change positions four times every hour, work would be available so long as that was the only limitation and the individual did not have to leave her work station. Tr. 48. If, however, an individual had to take a 10 minute break once or twice an hour and leave the work station every time she changed a position, such a limitation would preclude all employment. Tr. 48-49.
(Doc. No. 17 at pp. 2-12).
A district court must conduct a de novo review of "any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject or modify the recommended disposition, receive further evidence, or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); see also Norman v. Astrue, 694 F.Supp.2d 738, 740 (N.D. Ohio 2010).
The district judge "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." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6
Plaintiff asserts two objections to the Report, namely, that the ALJ erred: (1) in analyzing and weighing mental health opinions, including setting aside a psychological consultative exam as untimely when the facts on which it was based were longstanding; and (2) by relying on daily activities extracted arbitrarily in hearing in a way that values the psychological judgment of a psychiatrist over a psychologist as to psychological impact on daily activities. (Doc. No. 19 at p. 10).
As to her first objection, Plaintiff states the ALJ failed to give the proper weight to Dr. Neil S. Shamberg's consultative opinion. I disagree.
Consultative opinions and the evaluation of opinion evidence are addressed in 20 C.F.R. § 404.1527(e), entitled Evidence from our Federal or State agency medical or psychological consultants: "The rules in § 404.1513a apply except when an administrative law judge gives controlling weight to a treating source's medical opinion, the administrative law judge is not required to explain in the decision the weight he or she gave to the prior administrative medical findings in the claim." The policy interpretation behind this and related provisions is explained as follows:
SSR 96-6p, 1996 WL 374180 at *2. (Emphasis added).
In this case, the ALJ did consider Dr. Shamberg's evidence as follows:
(Doc. No. 11 at p. 102).
While the ALJ did not entirely reject Dr. Shamberg's opinion, she properly accorded it less weight because Dr. Shamberg was not a treating physician, the consultative examination occurred two years after the insured status period began, and the record did not contain evidence of a medically determinable mental impairment during the relevant period. This is in accord with the current standard in the Sixth Circuit. See Ealy v. Commissioner of Social Sec., 594 F.3d 504, 514 (6
Plaintiff's second objection takes aim at the ALJ's reliance on daily activities "extracted arbitrarily in hearing in a way that values the psychological judgment of a psychiatrist over a psychologist as to psychological impact on daily activities." (Doc. No. 19 at p. 2). The Plaintiff takes issue with the "rhetorical force in the ALJ's opinion about daily activities" as not an accurate accounting of her prior activities "extracted from Grisier at [the] hearing, but in the prominently-cited psychological judgment of physical-medicine specialist (or physiatrist [sic]) Larry Kennedy, M.D." Stated differently, the Plaintiff's objection takes issue with the ALJ's treatment of her testimony of her daily activities and the impact to on her ability to be capable of work. I disagree.
The applicable policy
SSR 96-7p, 1996 WL 374186 at *1.
The hearing transcript contains a thorough examination by Plaintiff's counsel of Ms. Grisier about her daily activities and the physical and emotional constraints related to those activities. The ALJ found Plaintiff's "ability to participate in such activities diminishe[d] the credibility of the claimant's allegations of functional limitations." (Doc. No. 11 at p. 101). The ALJ also had the benefit of the records of not only the treating physicians but the consultative professionals, many of whom commented on her level of functionality.
The ALJ found the objective medical evidence as well as the Plaintiff's self-reporting did not support her subjective allegations. This included Plaintiff's medical records, records of her treatment for back pain by Dr. Diane Conrad, M.D., and evaluation by Dr. Larry Kennedy, M.D., and the opinion evidence of Dr. Neil Shamberg, Ph.D. In addition to the medical evidence and the Plaintiff's testimony, the ALJ considered her past relevant work, the VE's testimony as to jobs available with the relevant restrictions. Given that record, the ALJ concluded Plaintiff's residual functional capacity did not preclude her form performing work-related activities:
(Doc. No. 11 at p. 102).
In assessing the existence of substantial evidence, the standard is deferential and requires affirming the Commissioner's decision, even if a reviewing court would come to a different conclusion. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6
Based upon the record before the ALJ and the hearing transcript, I find the ALJ's determination is supported by substantial evidence. See Her v. Commissioner of Social Sec., 203 F.3d 388, 389-90 (6
For the reasons stated above, the Plaintiff's objections are overruled and the September 26, 2016 Report and Recommendation (Doc. No. 17) is adopted as the Order of this Court. The Commissioner's decision is affirmed.
So Ordered.
