DAVID A. RUIZ, Magistrate Judge.
Plaintiff, Susan A. Gallagher (hereinafter "Plaintiff"), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter "Commissioner"), denying her applications for a Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("Act"). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.
On February 26, 2013 and March 7, 2013, Plaintiff filed applications for POD, DIB, and SSI respectively, alleging a disability onset date of June 15, 2006.
Plaintiff asserts the following assignments of error: (1) the ALJ erred in his handling of the opinion of her treating psychiatrist, and (2) the ALJ failed to properly weigh the opinions of the State agency psychological consultants. (R. 14, PageID# 945).
Plaintiff was born in 1973 and was 32-years-old on the alleged disability onset date. (Tr. 191). She had a high school education, some college education, and was able to communicate in English. (Tr. 24, 37, 39-40). She had past relevant work as a home health aide, daycare worker, and a cashier-checker. Id.
On March 31, 2006, Plaintiff was seen by advanced practice registered nurse Will D. Benson, APRN-BC, after being referred by a counselor for evaluation of her medication. (Tr. 782-783). Plaintiff's chief complaint was financial problems, her husband's medical issues, and her long history of depression. (Tr. 782). She was diagnosed with depressive disorder, NOS, and psychotic disorder, NOS. (Tr. 783). She was assigned a Global Assessment of Functioning ("GAF") score of 55.
After a several year gap in treatment, on April 13, 2012, Plaintiff was seen for a diagnostic assessment at the Coleman Community Mental Health Center with Paul Sarsany, PC-CR. (Tr. 379-396). Mr. Sarsany diagnosed depressive disorder NOS, anxiety disorder NOS, and ascribed her a GAF score of 55, indicating moderate symptoms. (Tr. 395-396).
On April 23, 2012, Plaintiff reported that she believed her house was haunted by her grandparents and great-grandparents. (Tr. 328).
On January 17, 2013, Plaintiff reported that her teenage daughter had been experiencing suicidal ideation. (Tr. 369).
On February 8, 2013, Plaintiff was seen by Richard Chenevey, MA, who diagnosed her with: (1) bipolar affective disorder, mixed, severe degree, specified as with psychotic disorder; (2) agoraphobia with panic disorder; (3) interpersonal problems, not elsewhere classified; and (4) posttraumatic stress disorder. (Tr. 320).
On February 11, 2013, Plaintiff was first seen by Ikem Nkanginieme, M.D. (hereafter "Dr. Ike") due to having a nervous breakdown. (Tr. 321). On mental status exam, Dr. Ike described Plaintiff as "good eye contact, well groomed, good hygiene, cooperative and friendly." (Tr. 322). Her psychomotor activity and speech were normal, her mood was odd/guarded, her affect was congruent with mood, and she was paranoid. Id. Her thought process was goal directed, she had no suicidal/homicidal ideation but was delusional, and her judgment was fair to poor. Id. He assessed a GAF score of 52. Id.
On April 8, 2013, Plaintiff reported experiencing "PTSD flashbacks with autonomic arousal and phobia." (Tr. 551). Dr. Ike assessed a GAF score of 52. (Tr. 552).
On September 13, 2013, Plaintiff was seen by Mr. Chenevey and "discussed her ongoing stressors paying the bills, getting her husband and daughter to and from school and school activities, dealing with her housing problems, etc." (Tr. 693). Plaintiff reported stress managing the household and paying the bills. Id.
On November 20, 2013, Plaintiff reported to Dr. Ike an uptick in her depression and anxiety to moderate levels after having to deal with her ex-husband. (Tr. 689). She related she was having a lot of financial problems. Id. On mental status examination, Dr. Ike described Plaintiff as "variable eye contact, well groomed, good hygiene, cooperative and friendly." (Tr. 690). Her psychomotor activity and speech were normal, her mood was anxious, her affect was congruent with mood, she was not paranoid or delusional and had no homicidal/suicidal ideation. Id. Her thought process was goal directed, her judgment was fair, but her concentration was impaired. Id. Nevertheless, Dr. Ike lowered Plaintiff's GAF score to 40-45, indicative of serious symptoms. Id.
On January 3, 2014, Plaintiff was seen by Natalie Malloy, MA, LPCC. (Tr. 688). On mental status exam, Plaintiff presented similarly as she did to Dr Ike, supra, and she was noted to be depressed. Id.
On January 16, 2014, Plaintiff reported to Dr. Ike that she was having suicidal thoughts without current intent. (Tr. 684). She also reported sleeping only 4-5 hours per night. Id. She was isolating more (TR 684). Her mental status on examination remained unchanged from November of 2013 except that her mood was depressed rather than anxious. (Tr. 685). Her GAF score remained at 40-45. Id.
On May 1, 2014, Plaintiff returned to Dr. Ike complaining of worsening anxiety and depression stemming from financial difficulties and a cut to her food stamp allowance due to her husband being on sanctions. (Tr. 657). On mental status examination, she was irritable, anxious, and angry, with limited insight and judgment. (Tr. 666-667). Her GAF score remained 40-44. (Tr. 667).
On October 28, 2014, Plaintiff was seen by Jan Murphy, LPCC, who noted Plaintiff came to the session "looking upbeat today and yet when I asked her about it, she said she was in the throes of anxiety and nervousness. She has been off her Lorazapam for 3 weeks and is feeling it very badly . . ." (Tr. 721). On mental status examination, she was oriented × 5, had normal psychomotor activity and speech, her insight/judgment were fair, her mood was anxious and depressed, and her thought process was logical. Id. She had no suicidal/homicidal ideation. Id. Plaintiff was stressed over having to pay a $200 cellphone bill. Id.
On October 29, 2014, Plaintiff was seen by Dr. Ike. (Tr. 718). Her mental status examination remained largely unchanged from her last visit with him except that her insight/judgment improved to fair. (Tr. 718). Dr. Ike lowered Plaintiff's GAF score to less than 40. Id.
On April 24, 2013, State agency psychological consultant Leslie Rudy, Ph.D. opined that Plaintiff was not significantly limited in her ability to: (1) carry out short and simple instructions or detailed instructions; (2) maintain attention and concentration for extended periods; (3) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (4) sustain an ordinary routine without special supervision; (5) work in coordination with or in proximity to others without being distracted by them; (6) make simple work-related decisions; (7) ask simple questions or request assistance; (8) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and, (9) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (Tr. 84-85). However, Dr. Rudy opined that Plaintiff was moderately limited in her ability to: (1) 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; (2) interact appropriately with the general public; and, (3) accept instructions and respond appropriately to criticism from supervisors. Id. Dr. Rudy noted that Plaintiff "would perform best in an isolated environment." (Tr. 85).
On July 1, 2013, State agency medical consultant Dimitri Teague, M.D., opined that Plaintiff should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc. (Tr. 118).
On July 9, 2013, State agency psychological consultant Irma Johnston, Psy.D., offered an opinion identical to that of Dr. Rudy. (Tr. 118-119). She reiterated Dr. Rudy's comment that Plaintiff "would perform best in an isolated environment," adding that "[s]he can relate infrequently with others." (Tr. 119).
On January 8, 2015, Dr. Ike and Ms. Murphy both signed a checklist questionnaire containing the following assessment of Plaintiff's ability to perform mental work-related activities. (Tr. 779-780). Plaintiff was deemed extremely limited in her ability to respond appropriately to changes in the work setting or to behave in an emotionally stable manner. Id. Plaintiff was assessed as markedly limited in her ability to relate to other people, to perform daily activities, to respond to customary work pressures, and to perform complex, repetitive, or varied tasks. (Tr. 779-780). The remaining limitations were all assessed as either mild or moderate. Id. The severity of these limitations was opined to have existed since at least December 31, 2007.
At the January 2015 hearing, Plaintiff testified as follows:
The VE characterized Plaintiff's past work as follows: nurse assistant: Dictionary of Occupational Titles ("DICOT") 355. 674-014, semi-skilled, SVP of 4, medium exertional; daycare worker, DICOT 359.677-018, semi-skilled, SVP of 4, light exertional; and, cashierchecker, DICOT 211.462-014, semi-skilled, SVP of 3, light exertional. (Tr. 71).
The ALJ posed the following hypothetical question to the VE:
(Tr. 72).
The VE testified that such an individual could not perform Plaintiff's past work. (Tr. 72). However, the VE identified the following jobs that such an individual could perform: sorter, DICOT 222.687-014, unskilled, SVP of 2, light exertional (300,000 jobs nationally, 2,000 in Ohio); marker, DICOT 209.587-034, unskilled, SVP of 2, light exertional (200,000 jobs nationally, 2,000 in Ohio); and, laundry folder, DICOT 369.687-018, unskilled, SVP of 2, light Exertional (100,000 jobs nationally, 1,000 in Ohio). (Tr. 73).
The ALJ posed a second hypothetical that was the same as the first, except that the hypothetical individual was to have "only interaction with coworkers and no contact with the public." (Tr. 73). The VE testified that the above identified jobs would remain. Id.
The ALJ posed a third hypothetical mirroring the second one with the additional limitation that the hypothetical individual would be off-task up to ten percent of the workday. (Tr. 73). Again, the VE testified that the same jobs would remain. Id.
The ALJ posed a fourth hypothetical mirroring the third one with the additional limitation that the hypothetical individual would miss one day of work per month due to symptoms. (Tr. 74). Again, the VE testified that the same jobs would remain. Id. An increase to two absences per month would eliminate all jobs. Id.
Plaintiff's counsel inquired as to the impact of a limitation where an individual needed to work in isolation. (Tr. 74). The VE responded that the jobs identified are typically performed alone away from the general public Id. However, the VE noted that a job requiring complete isolation, meaning no contact with coworkers or supervisors, would dramatically decrease the positions available. (Tr. 74-75).
A claimant is entitled to receive benefits under the Social Security Act when she establishes disability within the meaning of the Act. 20 C.F.R. § 404.1505 & 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process. 20 C.F.R. § 404.1520(a)(4); Abbott v. Sullivan, 905 F.2d 918, 923 (6
The ALJ made the following findings of fact and conclusions of law:
(Tr. 16-25).
Judicial review of the Commissioner's decision is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6
The Commissioner's conclusions must be affirmed absent a determination that the ALJ failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record. White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6
In the first assignment of error, Plaintiff asserts that the ALJ erred by failing to set forth good reasons for failing to credit a number of marked and restrictions as set forth by her treating psychiatrist, Dr. Ike, in a January 2015 assessment. (R. 14, PageID# 946-953). Conversely, the Commissioner avers that the ALJ reasonably weighed the opinion evidence from Dr. Ike, and reading the opinion as a whole, gave good reasons for doing so. (R. 15, PageID# 964-966). Alternatively, the Commissioner argues that any error was harmless, and that Dr. Ike's opinion was based on Plaintiff's subjective complaints, and that the checklist opinion was unsupported. (R. 15, PageID# 966-971).
"Provided that they are based on sufficient medical data, `the medical opinions and diagnoses of treating physicians are generally accorded substantial deference, and if the opinions are uncontradicted, complete deference.'" Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 240 (6
It is well-established that administrative law judges may not make medical judgments. See Meece v. Barnhart, 192 Fed. App'x 456, 465 (6
The ALJ addressed Dr. Ike and Ms. Murphy's January 2015 opinion as follows:
(Tr. 22-23).
First, the Commissioner has argued that the check-box or checklist format of Dr. Ike's opinion renders it unsupported. (R. 15, PageID# 970-971). "Supportability" is one of the factors specifically set forth in the regulations used to evaluate opinion evidence, and states that "[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion" 20 C.F.R. § 404.1527(c)(3). Numerous decisions have found that the use of checklist or check-thebox forms that contain little to no accompanying explanation for the assessed limitations, such as the one used herein by Dr. Ike and Ms. Murphy, are unsupported and, therefore, the ALJ may properly reject treating source opinions contained in such forms.
In her reply, Plaintiff responds to this argument by pointing out that the ALJ did not cite the check-box format of Dr. Ike's opinion as a basis for rejecting portions thereof. (R. 16, PageID# 979). She suggests the Commissioner's argument amounts to improper post hoc rationale. Based on recent decisions from the Sixth Circuit Court of Appeals, the court disagrees that the checkbox format of a treating source's opinion is irrelevant unless the ALJ specifically calls attention to it in his or her decision. In Ellars v. Commissioner of Social Security, the Sixth Circuit agreed with "the district court that the [ALJ] gave `good reasons' for not affording Dr. Schall's opinion controlling weight." 647 Fed. App'x 563, 568 (6
Id. at 566-567 (internal citations omitted). In Ellars—as in the case at bar—the ALJ's analysis of the treating source's opinion did not actually identify the checkbox format of the opinion in question as a reason for discounting it. Ellars v. Comm'r of Soc. Sec., No. 2:14cv2050, 2015 WL 3537442 at *3 (S.D. Ohio Jun. 4, 2015) (the ALJ only observed that the medical opinion was "conclusory," and provided "very little explanation"), report and recommendation adopted sub nom. Ellars v. Colvin, 2015 WL 4538392 (S.D. Ohio Jul. 27, 2015).
Another decision from the Sixth Circuit goes even further and determined that a check-box opinion, unaccompanied by any explanation, is "`weak evidence at best' and meets our patently deficient standard." Hernandez v. Comm'r of Soc. Sec., 644 Fed. App'x 468, 475 (6
Dr. Ike's and Ms. Murphy's January 2015 opinion mirrors the unexplained and unsupported checklist opinions disfavored in the above cases. As set forth in the recitation of the medical evidence, supra, the form consists of nothing but checked boxes coupled with her diagnoses. (Tr. 779-780). It is entirely bereft of any explanation as to the basis of the assessed limitations and fails to cite any support (objective findings, observations, etc.) that tend to support the limitations. Id. The opinion also states that Plaintiff is "improved w/medication," but does not clarify whether the assessed limitations reflect her status with or without medication. Id. Adding to the unsupported nature of the opinion is Dr. Ike's indication that the severity level of Plaintiff's limitations has persisted since at least December 31, 2007 despite the fact that Dr. Ike first saw the Plaintiff over five years later on February 11, 2013. (Tr. 545). Based on the Hernandez decision, the court finds that Dr. Ike's opinion similarly is "patently deficient" and the ALJ did not err by failing to credit it in its entirety.
Furthermore, the ALJ gave additional reasons for discounting Dr. Ike's opinion. These included the ALJ's observation that Dr. Ike's opinion was inconsistent with Plaintiff's longitudinal mental health history. (Tr. 22). Earlier in the decision, the ALJ specifically noted the "lack of any additional positive findings" on mental status examination that would have warranted the lowered GAF scores assigned by Dr. Ike. Id. The ALJ also noted that throughout much of Plaintiff's mental health treatment, her complaints revolved primarily around financial difficulties. Id. The ALJ also noted that the extent of the limitations assessed by Dr. Ike were inconsistent with the Plaintiff's hearing testimony. (Tr. 22). Though not clearly explained, this statement is not unreasonable given Plaintiff's history of working part-time without issue during the time period the limitations allegedly existed. (Tr. 43-47). Plaintiff's brief cites evidence that she believes demonstrates the validity of Dr. Ike's opinion. (R. 14, PageID# 949-953). However, as this court does not reweigh the evidence, Plaintiff's identification of evidence tending to bolster the treating source's opinion does not render the ALJ's reasons for discounting the opinion deficient. In other words, Plaintiff has attempted to remedy the lack of supportability by using her Brief on the Merits to fill in the gaps.
The Court finds that Plaintiff's first assignment of error is without merit, as Dr. Ike's opinion was patently deficient, and the ALJ gave sufficient reasons for not adopting in full the unsupported check-box opinions contained in the January 2015 assessment.
In the second assignment of error, Plaintiff asserts that the ALJ erred by failing to specifically discuss the weight assigned to State agency psychologists Drs. Rudy and Johnston, or to State agency physician Dimitri Teague, M.D.
The regulations state that ALJs "are not bound by any findings made by State agency medical or psychological consultants, or other program physicians or psychologists," but ALJs must "consider" their opinions in accordance with the same factors used to review other medical source opinions, because they are "highly qualified physicians, psychologists, and other medical specialists who are also experts in Social Security disability evaluation." 20 C.F.R. § 404.1527(e)(2)(i).
As recounted above, Drs. Rudy and Johnston primarily found Plaintiff was "not significantly limited" in most areas of mental functioning, but did note three areas where she was "moderately limited." (Tr. 83-85, 118-119). The Commissioner asserts that the RFC is consistent with the mental restrictions assessed by the State agency physicians. (R. 15, PageID# 972-973). The court agrees. Plaintiff seizes on the State agency psychologists' observations that she would "perform best" in an isolated environment, and suggests the RFC was inaccurate because it did not include a prohibition against any contact with coworkers or supervisors.
Therefore, the court finds no error in the ALJ's failure to explain the weight ascribed to the opinions of State agency Drs. Rudy and Johnston, as the RFC reasonably incorporates the limitations assessed in their respective opinions.
For the foregoing reasons, it is recommended that the Commissioner's final decision be AFFIRMED.