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Postell v. Commissioner of Social Security

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

March 1, 2018

KENDRA POSTELL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Linda V. Parker United States District Judge

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKT. 16, 20)

         Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On October 13, 2016, plaintiff Kendra Postell filed the instant suit. (Dkt. 1). The matter was initially assigned to District Judge Mark A. Goldsmith, who referred this matter to Magistrate Judge Steven Whalen for the purpose of reviewing the Commissioner's unfavorable decision denying plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income benefits. (Dkt. 3). The case was reassigned to District Judge Linda V. Parker and the undersigned on January 31, 2017. (Dkt. 12). This matter is before the Court on cross-motions for summary judgment. (Dkt. 16, 20).

         B. Administrative Proceedings

         Plaintiff filed a claim for a period of disability, disability insurance benefits, and Supplemental Security Income payments on July 23, 2010. (Tr. 18).[1] Plaintiff alleged disability beginning December 31, 2004. (Id.). The claims were initially disapproved by the Commissioner on August 8, 2011. (Id.). Plaintiff requested a hearing and on June 19, 2012, plaintiff appeared with counsel before Administrative Law Judge (“ALJ”) Anthony R. Smereka, who considered the case de novo. (Tr. 18). In a decision dated September 28, 2012, the ALJ found that plaintiff was not disabled. (Tr. 29). Plaintiff requested a review of this decision. (Tr. 13-14). The ALJ's decision became the final decision of the Commissioner when the Appeals Council, on January 24, 2014, denied Plaintiff's request for review. (Tr. 1-4); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

         Plaintiff appealed the decision to this Court and on August 6, 2015, Magistrate Judge Michael J. Hluchaniuk's filed a Report and Recommendation recommending remand, which was adopted by District Judge Linda V. Parker in a September 18, 2015 Opinion and Order. (Tr. 659, 777-817; Civil Docket 14-11244). On remand, the Appeals Council directed the ALJ to determine the effect of alcohol abuse on plaintiff's potential disability. (Tr. 659). Plaintiff alleged disability since December 31, 2004. (Id.). Plaintiff appeared with counsel before ALJ Smereka on remand on June 29, 2016. (Id.). In a decision dated August 10, 2016, the ALJ found that plaintiff was not disabled. (Tr. 673). Plaintiff did not file a written objection. The ALJ's decision became the final decision of the Commissioner 61 days from the date of the decision. (See Tr. 657).[2]

         For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment and defendant's motion for summary judgment each be GRANTED IN PART and DENIED IN PART, and that the findings of the Commissioner be REVERSED AND REMANDED for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).

         II. FACTUAL BACKGROUND

         A. ALJ Findings

         Plaintiff, who was born on May 6, 1981, was 23 years old on the alleged disability onset date. (Tr. 671). She has past relevant work as an assembly person, kitchen aide, cashier, hostess, hotel housekeeper, and retail clerk. (Tr. 671). The ALJ applied the five-step disability analysis and found at step one that plaintiff had not engaged in substantial gainful activity since December 31, 2004. (Tr. 661). At step two, the ALJ found that plaintiff's alcohol abuse; major depression; personality disorder, not otherwise specified; and anxiety disorder were “severe” within the meaning of the second sequential step. (Id.). However, at step three, the ALJ found no evidence that plaintiff's impairments singly or in combination met or medically equaled one of the listings in the regulations. (Tr. 662-65).

         Thereafter, the ALJ assessed plaintiff's residual functional capacity (“RFC”) as follows:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: no exposure to hazards, including no work at unprotected heights or around dangerous moving machinery; no driving in the course of employment; ability for, but restricted to, unskilled work, meaning the ability to perform simple, routine, and repetitive tasks that requires little judgment to perform simple duties and may be learned in a short period of time; due to stresses, no work with the general public; no more than occasional (from very little to up to one-third of the workday) contact with co-workers or supervisors; and no work in fast production pace settings where the pace is set by others, such as conveyor belt or assembly line work.

(Tr. 665). At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (Tr. 671). At step five, the ALJ denied plaintiff benefits because he found that there were jobs that exist in significant numbers in the national economy that plaintiff could perform. (Tr. 672-73).

         B. Plaintiff's Claims of Error

         Plaintiff raises two arguments in her brief: that the ALJ erred in concluding that her severe impairments, singly or in combination, did not meet or medically equal Listed Impairment § 12.04 at Step Three, and that the ALJ assessed an inaccurate RFC because the ALJ failed to consider Dr. Tripi's residual functional capacity opinion. (Dkt. 16 - Pl.'s Brief).

         Plaintiff argues that her impairments met or at least equaled Listed Impairment § 12.04 (depressive, bipolar, and related disorders). (Dkt. 16, at p. 18-19). Plaintiff cites a version of Listing 12.04 that was not in effect at the time of the hearing and argues that the ALJ did not properly assess 12.04. (Id. at p. 19). Plaintiff finds error in the ALJ's determination on the following paragraph “B” criteria: activities of daily living; concentration, persistence, or pace; and social functioning. (Id. at p. 20).

         Regarding activities of daily living, plaintiff argues that the ALJ “cherry picked” evidence to support his conclusion that she has only mild deficits in this area. The ALJ acknowledged that plaintiff's children were removed from her home, demonstrating that she struggled to maintain activities of daily living, but also acknowledged that she was able to get her children ready for school, bathe them, and cook. (Tr. 662). Plaintiff argues that it is unclear how the ALJ determined that she only had “mild” limitations with regard to her activities of daily living, given that her “struggles” to care for her children resulted in the termination of her parental rights, suggesting significant difficulties with activities of daily living. (Dkt. 16, at p. 20).

         As to social functioning, the ALJ opined that plaintiff's deficits in this area were only moderate, relying on medical expert Dr. Jonas's opinion that plaintiff's “ability to work in a fairly high pressured environment as a Sam's Club cashier, without any noted difficulty with frequent public interaction, confirms she does not have more than moderate deficits in social functioning despite allegations she does not get along well with other people.” (Id. at p. 23, Tr. 662). Plaintiff takes issue with the ALJ's reliance on Dr. Jonas's opinion here because there is no evidence in the record indicating whether plaintiff worked at Sam's Club with no difficulty with frequent public interaction. (Id.).

         Plaintiff also argues the ALJ erred in finding only mild limitation on concentration, persistence, and pace. (Id. at p. 24). Plaintiff asserts that she has memory problems, pointing to “Working Memory” test results (“Working Memory 63 - Extremely Low” (Tr. 1089); and, “Working Memory 66 - 1st percentile - Extremely Low.” (Tr. 1103)), as well as her inability to consistently recount her past work to medical professionals. (Id. at p. 21). Further, plaintiff states that the record is replete with assessments, evaluations and progress notes documenting problems with concentration, citing Tr. 237, 305, 313, 320, 436, 525, 529, 536, 586, 591-593, 618, 623, 1069, 1077, 1093-1095, 1115. (Id. at p. 24).

         Plaintiff also takes issue with the ALJ's analysis of Dr. Zerba's consultative examination report. (Id. at 19). Dr. Zerba diagnosed plaintiff with major depressive disorder and panic disorder without agoraphobia, along with a GAF score of 49, signifying the seriousness of her mental impairment. (Id.; Tr. 512). According to plaintiff, the ALJ failed to “flesh out” Dr. Zerba's report.

         Plaintiff also claims error in the ALJ's reliance on Dr. Jonas's testimony in general. (Dkt. 16, at p. 19). Plaintiff argues that Dr. Jonas' conclusions are flawed because his testimony shows that his opinion rested on his perception that plaintiff was capable of working for two-and-a-half years with one employer, that she only left that employment because she was pregnant, and that she worked for 90 days at Sam's Club, [3] without a noted problem. (Id. at p. 20-21; Tr. 721-22). However, plaintiff maintains that there is no evidence that she worked as Dr. Jonas characterizes-for 90 days without problems; plaintiff testified that she worked at Sam's Club part time. (Id. at p. 23) (Tr. 613). Plaintiff avers that the ALJ's reliance on the medical expert's unsubstantiated statements was error. (Id. at p. 23). Plaintiff argues it was also error for the ALJ to give Dr. Jonas' opinion significant weight over treating doctors' opinions because Dr. Jonas found three consistent IQ scores to be invalid and “flippantly” dismissed a diagnosis of bipolar disorder, stating, “It's massively over applied by all kinds of people, and if you tell me that one person out of this whole mix diagnosed bipolar disorder, I'll point out to you that all the rest of them did not. And it's massively over applied. . . . It has no meaning.” (Id. at p. 24) (Tr. 724).

         Plaintiff next argues that the RFC is inaccurate because the ALJ erroneously gave Dr. Tripi's opinion little weight even though the opinion's functional limitations conformed to the record as a whole, and the ALJ failed to explain why Dr. Tripi's functional limitation opinions did not conform to the record. (Id. at p. 33-34). Instead, the ALJ only discussed Dr. Tripi's determination that plaintiff's symptoms were disabling; thus, because the ALJ did not address the specific functional limitations on which Dr. Tripi opined, and to which of those he gave the “limited weight, ” the ALJ erred. Further, because the ALJ relied on a perceived “successful” job plaintiff held in 2004 to reject the opinion that plaintiff could not now work, the ALJ's opinion is not supported by substantial evidence. (Id. at p. 35).

         C. Commissioner's Motion for Summary Judgment

         In response to plaintiff's Step Three argument, the Commissioner notes as an initial matter that the claimant bears the burden of proof at Step Three to do more than point to evidence the ALJ could have relied on to raise a question as to whether the plaintiff satisfied a Listing. (Dkt. 20 - Dft.'s Brief, at p. 4) Rather, plaintiff must point to specific evidence that demonstrates she reasonably could meet or equal every requirement of the Listing. (Id. at p. 5) (citing Smith-Johnson v. Comm'r of Soc. Sec., 579 Fed.Appx. 426, 432 (6th Cir. 2014). The Commissioner acknowledges that plaintiff argues error only under Listing 12.04, paragraph “B, ” (Id. at p. 5), and points out that plaintiff referred to the wrong version of Listing 12.04 in her brief. Specifically, she appears to be referring a version that took effect after the ALJ decision on August 10, 2016. (Id. at p. 8).

         The Commissioner argues that substantial evidence supports the ALJ's conclusion that plaintiff's impairments neither met nor equaled the severity of 12.04. (Id.; Tr. 662). The ALJ gave great weight to state agency reviewing psychologist Dr. Kriauciunas who found that plaintiff's impairments did not meet or equal a listing. (Id. at p. 5-6; Tr. 515). Although the ALJ did not discuss it, state agency reviewing psychologist Dr. Nordbrock came to the same conclusion. (Id. at p. 6; Tr. 575) (citing Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001) (“court may look to any evidence in the record, regardless of whether it has been cited by the [ALJ].”)). The ALJ also gave great weight to Dr. Jonas's hearing testimony. (Id. at p. 6). Dr. Jonas reviewed the entire medical record and opined that plaintiff had no marked limitation for purposes of the paragraph B criteria of the listing. (Id.; Tr. 703-04, 714). As the ALJ noted, “Dr. Jonas is a medical expert in the field of psychiatry with experience reviewing Social Security applications, making him well versed in the application of Social Security rules and regulations.” (Id.; Tr. 664). Drs. Kriauciunas and Nordbrock are also experts in Social Security disability evaluation. (Id.) (citing 20 C.F.R. §§ 404.1527(e)(2)(i) & 416.927(e)(2)(i)). The Commissioner notes that the Sixth Circuit has recognized such expert opinion evidence amounts to substantial evidence to support the ALJ's conclusions. (Id. at p. 7) (citing Helm v. Comm'r of Soc. Sec., 405 Fed.Appx. 997, 1002 (6th Cir. 2011). Plaintiff does not advance a medical opinion indicating that Listing 12.04 was met or equaled. (Id. at p. 8).

         According to the Commissioner, plaintiff's assertion that the ALJ engaged in “cherry picking” should be rejected. (Id. at p. 9) (citing DeLong v. Comm'r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014) (an allegation of “‘cherry picking' … is seldom successful because crediting it would require a court to re-weigh record evidence”). That accusation is particularly unavailing, posits the Commissioner, in light of the ALJ's reliance on Dr. Jonas's hearing testimony, wherein he offered an opinion as to the paragraph “B” criteria based on a review of the entire medical record. (Id. at p. 9; Tr. 686, 716, 720).

         The Commissioner contends that there is no error in the ALJ's analysis of Dr. Jonas's opinion. (Id. at p. 9). Plaintiff fails to show that Dr. Jonas unreasonably relied in part on her 90 days of work as a cashier at Sam's Club. (Id. at p. 10). Plaintiff bears the burden at Step Three. Therefore, her acknowledged lack of evidence that she had any problem at Sam's Club before being fired for stealing a customer's credit card (Tr. 613, 696, 709-10) does not upset Dr. Jonas's analysis or the ALJ's reliance on it. (Id. at p. 10).

         Dr. Jonas's testimony that bipolar disorder is over-applied and that the three IQ scores did not reflect her true abilities has no bearing on whether her impairments meet or equal Listing 12.04. (Id. at 11). Plaintiff's argument is, according to the Commissioner, that Dr. Jonas generally cannot be accepted as an expert in psychiatry, and that argument is waived because she did not raise such an objection before the ALJ. (Id. at p. 11) (citing Tr. 688-746). Dr. Jonas's extensive credentials establish that a reasonable mind can rely on him as an expert in psychiatry (Id. at p. 11) (citing Tr. 1110-12).

         Furthermore, because the ALJ acknowledged Dr. Zerba's report, including her diagnoses and GAF assessment, plaintiff's argument that the ALJ did not flesh out Dr. Zerba's report is unavailing. (Id. at p. 12). The Commissioner contends that a diagnosis alone says nothing about the severity of the condition and ...


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