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Smith v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

February 12, 2015

CURTIS SMITH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 17, 18)

MICHAEL J. HLUCHANIUK, Magistrate Judge.

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On June 21, 2013, plaintiff Curtis Smith filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge David M. Lawson referred this matter to the undersigned for the purpose of reviewing the Commissioner's decision denying plaintiff's claim for disability and disability insurance benefits. (Dkt. 4). This matter is before the Court on cross-motions for summary judgment. (Dkt. 17, 18).

B. Administrative Proceedings

Plaintiff filed the instant claim for disability and disability insurance benefits (DIB) on May 28, 2010, alleging that he became disabled beginning March 21, 2009. (Dkt. 13-5, Pg ID 200-01). The claim was initially disapproved by the Commissioner on September 23, 2010. (Dkt. 13-3, Pg ID 157). Plaintiff requested a hearing and on October 3, 2011, plaintiff appeared, with counsel, before Administrative Law Judge (ALJ) Michael S. Condon, who considered the case de novo. (Dkt. 13-2, Pg ID 75-124). In a decision dated November 22, 2011, the ALJ found that plaintiff was not disabled. (Dkt. 13-2, Pg ID 58-70). Plaintiff requested a review of this decision on December 2, 2011. (Dkt. 13-2, Pg ID 52). The ALJ's decision became the final decision of the Commissioner when the Appeals Council, on April 26, 2013, denied plaintiff's request for review. (Dkt. 13-2, Pg ID 43-46); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that the Commissioner's motion for summary judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff, born in 1961, was 47 years of age on the alleged disability onset date and 48 years old on the date last insured, September 30, 2010. (Dkt. 13-2, Pg ID 69). Plaintiff had past relevant work experience as a paint mixer, a gutter installer, and a siding installer. (Dkt. 13-2, Pg ID 68-69). The ALJ applied the five-step disability analysis to plaintiff's claim and found at step one that plaintiff had not engaged in substantial gainful activity during the period from his alleged onset date through his date last insured. (Dkt. 13-2, Pg ID 60). At step two, the ALJ found that plaintiff's Marfan's syndrome, status-post aortic aneurysm repair (2006), degenerative disc disease of the lumbar spine, lumbar spondylosis, status-post right rotator cuff repair surgery (September 2009), status-post clavicle resection, a major depressive disorder, a learning disorder, NOS, and an alcohol abuse disorder were "severe" within the meaning of the second sequential step, and that plaintiff's emphysema, borderline intellectual functioning, carpal tunnel syndrome, and alleged illiteracy were not severe. (Dkt. 13-2, Pg ID 60-62). At step three, the ALJ found no evidence that plaintiff's combination of impairments met or equaled one of the listings in the regulations. (Dkt. 13-2, Pg ID 62-63).

The ALJ determined that plaintiff has the following residual functional capacity ("RFC"):

to perform sedentary work as defined in 20 CFR 404.1567(a). He could stand and walk for up to two hours total in an eight-hour workday and sit for up to six hours total in an eight-hour workday. The claimant could never reach overhead with his right upper extremity. He could occasionally climb ramps and stairs, stoop, and crouch. He could never climb ladders, ropes or scaffolds, kneel, or crawl. He could frequently balance. He could do no reading or writing on the job. The claimant was limited to performing simple, routine, and repetitive tasks involving no fast-paced production quotas and only simple work-related decisions. He could have only occasional interaction with the public, coworkers, and supervisors.

(Dkt. 13-2, Pg ID 63-68). At step four, the ALJ found that plaintiff was unable to perform his past relevant work, because the exertional demands of those positions exceeded plaintiff's RFC. (Dkt. 13-2, Pg ID 68-69). At step five, the ALJ denied plaintiff benefits because he could perform a significant number of jobs available in the national economy. (Dkt. 13-2, Pg ID 69-70).

B. Plaintiff's Claims of Error

Plaintiff first argues that the ALJ erred in giving the opinion of plaintiff's treating psychiatrist, Dr. Mohammad Jafferany, little weight. Plaintiff states that the ALJ gave Dr. Jafferany's opinion little weight because "form reports in which a doctor's obligation is only to check a box, without explanation of the doctor's medical conclusions, are weak evidence at best, " and because Dr. Jafferany's opinion "is inconsistent with the claimant's lack of treatment until August 2010 and the generally unremarkable mental status examinations." (Tr. 25). Plaintiff responds that the format of Dr. Jafferany's opinion is irrelevant to the assessment of the opinion, as the format of the assessment is not a factor the adjudicator is to take into account pursuant to 20 C.F.R. § 404.1527(d). Plaintiff further asserts that plaintiff is a Medicaid patient, treated at a rural county's psychiatric clinic, and psychiatrists at such clinics do not have the luxury of producing elegant, flowing, multi-page assessments. Plaintiff contends that the specific form used by Dr. Jafferany was created by the Social Security Administration, and there is nothing unreliable or suspect in the use of such a form.

Plaintiff asserts that Dr. Jafferany's August 15, 2011 assessment noted marked limitations in following work rules, relating to co-workers, dealing with the public, interacting with supervisors, using judgment, dealing with work stresses, and maintaining attention/concentration, noted moderate limitations in functioning independently, noted marked limitations in demonstrating reliability, and noted moderate limitations in relating predictably in social situations. Dr. Jafferany indicated extreme limitations with difficulties in maintaining concentration, persistence, or pace and marked limitations with difficulties in maintaining social functioning. (Tr. 489-91). Plaintiff states that the ALJ must give the medical opinion of a treating source controlling weight if the opinion is well-supported by medically acceptable clinical techniques and not inconsistent with the other substantial evidence. See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).

Plaintiff argues that the ALJ failed to give "good reasons" for rejecting the opinions of Dr. Jafferany. First, plaintiff contends, the finding that Dr. Jafferany's opinions are "inconsistent with the claimant's lack of treatment until August 2010" is a non sequituur, because treatment for a psychiatric condition has to begin at some point, and failure to receive treatment for mental problems may be a symptom of a mental disorder, citing White v. Commissioner of Social Security, 572 F.3d 272 (6th Cir. 2009). Plaintiff also asserts that Dr. Jafferany's assessment is consistent with the global assessment of functions (GAF) scores in plaintiff's treatment record. On August 11, 2010, plaintiff's GAF score was 45 (Tr. 543-44), and plaintiff also had a GAF score of 45 on September 17, 2010 (Tr. 556-57) and April 13, 2011 (Tr. 514). A GAF score of 50 or below indicates markedly impaired functioning in a school or work setting. Plaintiff further argues that, contrary to the ALJ's determination, Dr. Jafferany's opinions are not inconsistent with his mental status examinations, in which he reported trouble with getting to sleep due to worrying about everything, a lack of energy, anger problems, not liking himself or others, and that his mood was depressed and anxious, his judgment and insight were fair, his affect was bland, and he was diagnosed with major depressive disorder, recurrent, moderate; alcohol abuse; and learning disorder NOS. (Tr. 25, 501-05, 514, 535-45, 555-57, 563, 565, 567-68, 570-71, 575-76).

Plaintiff continues that if the ALJ declines to give a treating source's opinion controlling weight, he must then balance the factors set forth in 20 C.F.R. § 1527(c)(2)(I) and (ii) and (c)(3) through (6) to determine what weight to give the opinions. Wilson, 378 F.3d at 544. Plaintiff asserts that Dr. Jafferany is a psychiatrist and thus a specialist who has treated plaintiff on a regular and continuing basis from October 2010 through the date of the hearing (Tr. 499-577), and the reasons given in the ALJ's decision for giving "little weight" to Dr. Jafferany's opinions are contrary to the regulations and not supported by substantial evidence of record.

Plaintiff argues, for his second claim of error, that the ALJ erred in failing to find that plaintiff's mild mental retardation and other physical and mental work limitations met Listing 12.05C. Listing 12.05C states that an individual meets the listing if he has an IQ between 60 and 70 and a physical or other mental impairment which imposes an additional and significant work-related limitation of function. Plaintiff contends that the ALJ's decision failed to make this determination. Plaintiff asserts that the ALJ apparently found that plaintiff's IQ score was higher than 67, and also discussed a verbal IQ score of 67-73 when plaintiff was 16, but found that "[t]his does not satisfy the listing criteria for 12.05C because the score is a range instead of a singular value." (Tr. 19). Plaintiff contends that the ALJ decision failed to make the critical finding of whether plaintiff's IQ score was 70 and below or 71 and above. Plaintiff asserts that consulting evaluator Dr. Brady found plaintiff's IQ to be 67 (Tr. 480-84), and that the ALJ found plaintiff to have the severe impairments of Marfan's syndrome, status post aortic aneurysm repair, degenerative disc disease of the lumbar spine, lumbar spondylosis, status post right rotator cuff repair surgery, status post clavicle resection, major depressive disorder, learning disorder, and alcohol abuse disorder. (Tr. 18). Also, Dr. Jafferany found plaintiff's mental impairments to significantly impair his functioning. (Tr. 489-91). Thus, plaintiff concludes, he had both significant physical and other mental impairments, each of which imposed significant work related limitation of function, and that these additional limitations, in addition to an IQ of 67, would satisfy Listing 12.05C.

Plaintiff continues that Listing 12.05C defines mental retardation as "significantly subaverage intellectual functioning with deficits in adaptive behavior initially manifested during the development period (before age 22)." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. A May 11, 1981 psychological reevaluation of plaintiff (when he was 19 years, 6 months old, in the 12th grade) indicated that plaintiff was within the borderline range of intellectual functioning with "overall reading score at the late first grade level" (Tr. 432), which plaintiff asserts demonstrates that his condition manifested before age 22. Plaintiff notes that the consultative examiner found plaintiff had a full-scale IQ of 67, but also noted that plaintiff's motivation was poor and he likely would have scored higher if he put forth more effort. (Tr. 19). Plaintiff complains that the ALJ's decision failed to address whether plaintiff's putative score would be below 70, and thus still satisfying 12.05C, or higher. Brown v. Sec'y of Health & Human Servs., 948 F.2d 268 (6th Cir. 1991) ("We also note that the Secretary could have administered a second I.Q. test were he certain of the invalidity of Mr. Brown's scores. He did not."). Plaintiff complains that the ALJ instead cherry-picked higher IQ scores from a 1978 IQ test (noting a full scale IQ of 80-86), and that the school IQ tests are not substantial evidence of plaintiff's IQ at the time of the hearing. In any event, plaintiff argues that plaintiff's verbal IQ scores in the 1976 test "fell within the Borderline range of scores (67-73)." (Tr. 433). Plaintiff also asserts that the ALJ decision failed to note plaintiff's IQ of 68 in 1975 using the Slosson IQ test (Tr. 434), and that the ALJ's findings that cognitive testing and plaintiff's appearance at the hearing suggests his mental functioning is in the average to low average range is not substantial evidence to support a conclusion that plaintiff's IQ was over or under 70.

Plaintiff notes that the ALJ also found that plaintiff did not have adaptive functioning deficits required by 12.05C, citing semi-skilled work and the ability to drive, cook simple meals, and shop. (Tr. 19). Plaintiff disputes that his past work installing siding and gutters was properly classified as semi-skilled, citing his limited earnings from 2002 through 2006 and unsuccessful work history. Plaintiff also disputes that his ability to drive, cook simple meals and shop supports an absence of deficits in adaptive functioning, citing Brown v. Secretary of Health & Human Services, 948 F.2d 268 (6th Cir. 1991), as holding that the ability to use public transit, make change in a grocery store, do his own laundry, use a drivers' license, and follow a road atlas were not inconsistent with a valid IQ test of 68.

For his third and final claim of error, plaintiff argues that the ALJ erred in failing to find plaintiff to be disabled under Medical Vocational Rule 201.17. Plaintiff asserts that he was 48 years old on his date last insured, and the Medical Vocational Rule 201.17 indicates that a younger individual of ages 45-49 who is illiterate with an unskilled work history who is limited to sedentary work is disabled. Plaintiff contends that his prior work as a siding installer and a production worker did not require any reading or writing (Tr. 173-74), and that contrary to the ALJ's finding, he never actually performed that work at a semi-skilled level. The ALJ noted that the prior March 24, 2009 ALJ decision found that plaintiff was not illiterate and that he was bound by that finding. (Tr. 19-20). Plaintiff argues, however, that the prior adjudication is suspect and should not be given controlling weight because the prior ALJ found plaintiff to be literate based solely on the basis that "claimant has a driver's license and would have had to pass a test in order to obtain his license" (Tr. 93), which plaintiff asserts is sheer speculation as there is no mention of any evidence of how plaintiff was able to receive a license. According to plaintiff, as noted in Skinner v. Secretary of Health & Human Services, 902 F.2d 447 (6th Cir. 1990), the written portion of a driver's license exam can be administered orally. The prior ALJ decision also noted that plaintiff did not mention illiteracy in his application (Tr. 93), which plaintiff asserts has no probative value since it assumes an illiterate person would understand that the Social Security regulations consider illiteracy as a relevant factor.

Plaintiff argues that neither the prior ALJ decision nor the current decision provide any basis for finding plaintiff to be literate, and that the Commissioner was required to find plaintiff illiterate where achievement testing demonstrated that plaintiff read below a third grade level despite plaintiff's completion of a formal eighth grade education, citing Skinner, 902 F.2d at 449-50. According to plaintiff, the TBHS individual person-centered plan dated August 20, 2010 indicated that plaintiff "was forthcoming that he was unable to read, which caused him significant shame" (Tr. 551), and Dr. Brady's consultative examination report dated September 8, 2010 noted that plaintiff had a feeling of worthlessness because he cannot read or write. (Tr. 480). Further, plaintiff testified at the hearing that he cannot read a newspaper, that he can only read two and three letter words, that his wife filled out all of the Social Security forms for him, and that he was unable to keep a job at a bakery because he could not read the recipes. (Tr. 38-39, 63). Plaintiff contends that the ALJ did not find this testimony credible, stating "[t]here is certainly nothing that has happened that would make one conclude that [plaintiff's] reading and writing ability is worse than it was at the time of the prior determination." (Tr. 20). Plaintiff counters that there was no psychiatric diagnosis at the time of the prior decision, and that he now has been diagnosed with major depressive disorder, recurrent, and learning disorder NOS, with a GAF of 45. (Tr. 555-57). Plaintiff contends that a major depressive disorder would impact his cognition and comprehension, given that his early reading level was extremely marginal, and that the ALJ failed to cite any evidence to support his lay conclusion that a significant depressive disorder could not further impair plaintiff's ability to read.

Plaintiff further argues, for purposes of res judicata, that the prior decision did not address the issue of Medical Vocational Rule 201.17, but only addressed plaintiff's ability to read or write in terms of whether the condition was a severe impairment. (Tr. 93). Thus, plaintiff concludes, res judicata was improperly applied by the ALJ here because the determination of plaintiff's literacy in the prior decision was not "pertinent to the same issue;" here, the applicability of a Medical Vocational Rule. "Illiteracy" is the inability to read or write a simple message such as instructions or an inventory list. 20 C.F.R. § 404.1564(b)(1). Plaintiff argues that the ALJ's RFC determination that includes "no reading or writing" is, in fact, a finding of illiteracy, and had the ALJ found plaintiff's abilities to be functionally equivalent to being illiterate, the application of Medical Vocational Rule 201.17 would direct a finding of disabled. Plaintiff therefore asks the Court to reverse the decision of the Appeals Council and the ALJ and remand this matter for an award of benefits or, in the alternative, remand this matter for further proceedings.

C. Commissioner's Motion for Summary Judgment

The Commissioner first argues that the ALJ provided "good reasons" to reject the conclusions on Dr. Jafferany's form. The Commissioner notes that plaintiff criticized the ALJ for failing to address the length of the treatment relationship, the frequency of examination, or the nature and extent of the relationship that he had with Dr. Jefferany. The Commissioner argues that plaintiff, however, did not seem to realize that as of his date last insured, September 30, 2010, Dr. Jefferany did not have a treating relationship with plaintiff. Indeed, as of that date, Dr. Jefferany had seen plaintiff once, for an initial evaluation. (Tr. 555-57). The Commissioner argues that as the ALJ concluded his inquiry with plaintiff's date last insured, there was no treatment relationship for the ALJ to evaluate. According to plaintiff, Dr. Jefferany "treated (him) on a regular and continuing basis from October 2010 through the date of the ALJ hearing, October 3, 2011." (Dkt. 17, Pg ID 647-48). Thus, the Commissioner contends, even plaintiff, at least in that statement, appears to realize that Dr. Jefferany's treatment occurred after plaintiff's date last insured.

Further, although plaintiff asserted that Dr. Jefferany provided regular and continuing treatment between October 2010 and October 2011, and cited transcript pages 499-577 in support, the Commissioner argues that many of the medical records found on those pages are from social workers, Alexis Hight (Tr. 499-501, 503, 504, 506), Deb Geno (Tr. 507, 510-11, 513, 562-66), Cynthia Bulitz (Tr. 508, 561), and Bruce McGhee (Tr. 510, 516, 517, 518, 520, 521, 522, 567-69, 571-73, 576-77). The Commissioner also notes that the document found at Tr. 527-30 is a letter from Mr. Smith's representative, and the document at Tr. 531-34 is a health history questionnaire that either plaintiff or someone helping him filled out on August 10, 2010. Similarly, an Outpatient Psychosocial History was also signed by plaintiff and dated August 10, 2011 (Tr. 535-42). Thus, the Commissioner concludes, contrary to plaintiff's assertion, the majority of the records found in the pages he selected are not from Dr. Jefferany.

The Commissioner contends, in addition, plaintiff engaged in a very selective view of the record in his attempt to demonstrate that the ALJ erred when he stated that the limitations Dr. Jefferany set out on the form were inconsistent with generally unremarkable mental status examinations. (Tr. 25). For example, plaintiff cited a progress note from October 29, 2010, to demonstrate a bland affect. (Tr. 501). However, Alexis Hight, the social worker who submitted that report, also stated that plaintiff's appearance was appropriate, as was his affect, and she described plaintiff's mood as relaxed and his rapport as cooperative. ( Id. ). In the narrative portion of this progress note, Ms. Hight reported that plaintiff remained active in his wife's catering business, and that ...


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