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Duck v. Commissioner of Social Security Administration

United States District Court, Sixth Circuit

July 22, 2013

DORA DUCK, Plaintiff,


KATHLEEN B. BURKE, Magistrate Judge.

Plaintiff Dora Duck ("Plaintiff" or "Duck") seeks judicial review of the final decision of Defendant Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. ยง 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2(b)(1).

For the reasons stated below, the undersigned recommends that the Commissioner's decision be AFFIRMED.

I. Procedural History

As discussed more fully below, this case comes to this Court following an administrative hearing held and decision issued after a remand by the Appeals Council. On June 8, 2006, and June 27, 2006, Duck filed applications for DIB and SSI. Tr. 147-50, 219-226. In her applications, Duck alleged a disability onset date of December 20, 2002. Tr. 219, 224, 264. She alleged disability based on Graves disease[2] and mental health issues. Tr. 167, 170, 176, 179, 275. After initial denial by the state agency (Tr. 167-72), and denial upon reconsideration (Tr. 176-81), Duck requested a hearing (Tr. 182-83).

A. 2009 Administrative Hearing and Decision and 2010 Remand Order

On March 10, 2009, an administrative hearing was held. Tr. 95-146. On May 27, 2009, the Administrative Law Judge ("ALJ") issued a decision wherein she determined that Duck had not been under a disability from December 20, 2002, through the date of her decision. Tr. 151-62. Duck requested review of the May 27, 2009, ALJ decision and, on July 28, 2010, the Appeals Council vacated the hearing decision and remanded Duck's case for further administrative proceedings. Tr. 163-66. The Appeals Council remanded the case for further evaluation of Plaintiff's mental impairments; further consideration of Plaintiff's maximum residual functional capacity; re-evaluation of Plaintiff's past work and whether it could be considered past relevant work; and, if warranted, further vocational expert testimony to clarify the effect of the assessed limitations on the Plaintiff's occupational base. Tr. 164-66.

B. 2011 Administrative Hearing and Decision following Remand

Following the Appeals Council's remand order, a second administrative hearing was held before another ALJ on August 2, 2011. Tr. 33-94. In his August 26, 2011, decision, the ALJ determined that Duck had not been under a disability from December 20, 2002, through the date of his decision. Tr. 10-32. Duck requested review of the August 26, 2011, decision by the Appeals Council. Tr. 6-9. On October 19, 2012, the Appeals Council denied Duck's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-5.

II. Evidence

A. Personal and Vocational Evidence

Plaintiff was born on October 5, 1966. Tr. 219. She took special education classes through the ninth grade.[3] Tr. 42. At 18 years of age, Duck married and moved to California with her husband. Tr. 367. She resided in California for the next 15 years and worked a number of manual labor jobs. Tr. 367. Around 2005, Duck divorced her husband and moved back to Ohio where she resides with her children. Tr. 50, 367.

B. Medical Evidence

1. Treatment Records[4]

In 2001, 2002 and 2003, Duck was periodically seen at the offices of Susan Hake, M.D., for treatment of her hypothyroidism. Tr. 373. In 2006, Dr. Hake reported that her last recorded visit with Duck was on April 22, 2003. Tr. 373. Dr. Hake was unable to comment on Duck's then current abilities or disabilities. Tr. 373. Treatment records reflect that, thereafter, in 2003 through 2006, Duck treated with providers at Family Practice of Doctors Hospital for her thyroid condition and other ailments, such as pressure in her ears, sore throat, and a rash. Tr. 343-62.

In 2005, Duck attended two counseling sessions with Trillium Family Solutions but then withdrew from treatment. Tr. 321-41, 339. During intake, Duck reported difficulties, including appetite and sleep disturbance, preoccupation around her impending divorce and custody battle, and her children acting out. Tr. 330. When closing Duck's file, a therapist with Trillium Family Solutions noted that Duck's primary concern related to her son, who was struggling with substance abuse. Tr. 340-41.

Duck treated with providers at Mercy Medical Center in 2007 and 2008. Tr. 409. On January 16, 2008, Duck sought treatment at Mercy Medical Center, requesting that her thyroid be checked because she had had some hoarseness in her voice and a sore throat for approximately six weeks. Tr. 402-04. She was also concerned about depression and anxiety. Tr. 402-04. During that visit, Teri Sanor, M.D., and Kathleen Ann Senger, M.D., treated Duck. Tr. 404. They assessed Duck with hypothyroidism and, following a recheck of her TSH levels, they planned to adjust Duck's medication. Tr. 404. They also assessed her with depression and anxiety and prescribed Zoloft, noting it had been effective but Duck had run out of the medication. Tr. 404. The doctors discussed the benefits of counseling but Duck was not interested in counseling at that time. Tr. 404.

Also, during 2008, Duck treated with Affinity Medical Center for her hypothyroidism. Tr. 421-28. On July 31, 2008, a sonogram was performed of Duck's thyroid. Tr. 429-30. The sonogram revealed a "small thyroid with an incidental tiny cyst involving the superior portion of the left lobe of the thyroid." Tr. 430. No other abnormalities were noted.[5] Tr. 430.

In September 2010, Duck switched providers from Affinity Medical Center to Aultman Physician Center. Tr. 448. She continued to treat with Aultman Physician Center through April 14, 2011. Tr. 445-47. On September 13, 2010, Duck saw Dr. Jigna Janani and Dr. Richard Ziegler with the Aultman Physician Center for follow-up on her hypothyroidism. Tr. 448-49. The physicians noted that Duck had hypothyroidism and that her recent blood work came back showing a normal TSH level. Tr. 449. On November 11, 2010, Duck saw Drs. Janani and Narayanan for a pre-employment physical. Tr. 446-47. They indicated that she had recently found a job at a daycare center and noted that Duck was "doing great." Tr. 446-47. Drs. Janani and Narayanan also noted that Duck had been very compliant with her thyroid medication and a review of her systems was completely negative. Tr. 446. On April 14, 2011, Duck again sought treatment at Aultman Physician Center. Tr. 444-45. She complained of left shoulder pain which she reported having had for the 2 prior years. Tr. 444. She denied any depression but indicated that she was experiencing a lot of stress with her ex-boyfriend. Tr. 444. Duck was advised to take Naproxen twice a day for her shoulder pain and to apply heat. Tr. 444. Because her thyroid condition was stable, she was advised to stay on the same regimen. Tr. 444. She was counseled on forms of abuse and advised to seek counseling or to contact her physicians immediately if she needed help. Tr. 444-45.

2. Consultative and Reviewing Physicians

a. Consultative Physician James M. Lyall, Ph.D., ABPN - mental

On August 14, 2006, James M. Lyall, Ph.D., ABPN, conducted a consultative examination. Tr. 365-71. Dr. Lyall administered the Wechsler Adult Intelligence Scale - Third Edition (WAIS-III).[6] Tr. 368, 371. Duck's scores on the WAIS-III were as follows: Verbal IQ-74; Performance IQ-75; and Full Scale IQ-72. Tr. 371. Dr. Lyall also administered the Wide Range Achievement Test - Fourth Edition (WRAT-4).[7] Tr. 369, 371.

Dr. Lyall opined that Duck's scores put her in the borderline range of intelligence with equally poor reading and math skills. Tr. 369. He noted that she has a history of depressive difficulties and reported current symptoms of depression without continuing treatment. Tr. 369. Dr. Lyall's diagnoses included major depressive disorder, recurrent, moderate and borderline intellectual functioning. Tr. 369. Dr. Lyall indicated that Duck has both physical and intellectual psychological stressors. Tr. 369. He also noted that Duck reported a history of Grave's disease and was taking medication for that condition. Tr. 368, 369. While noting that Duck's functional impairment fell at a GAF of 60, when taking into account her depressive symptoms, Dr. Lyall assessed her with a GAF of 55.[8] Tr. 369.

He opined that Duck's: (1) ability to relate to others, including fellow workers and supervisors, is mildly to moderately impaired by her borderline intelligence and social withdrawal; (2) ability to understand and follow instructions is moderately impaired by her borderline intellectual functioning; (3) ability to maintain attention and perform simple repetitive tasks is mildly to moderately impaired; and (4) ability to withstand the stress and pressure associated with day-to-day work activity is moderately impaired. Tr. 369. Dr. Lyall indicated that Duck would have difficulty in jobs that require reading skills or good math ability and would have difficulty understanding complex directions upon initial presentation. Tr. 369.

b. Reviewing Physician Kristen Haskins, Psy.D. - mental

On August 28, 2006, Kristen Haskins, Psy.D., completed a Mental RFC (374-77) and a Psychiatric Review Technique (Tr. 378-91). Dr. Haskins found that Duck is moderately limited in the following six categories: (1) ability to understand and remember detailed instructions; (2) ability to carry out detailed instructions; (3) ability to maintain attention and concentration for extended periods; (4) 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; (5) ability to interact appropriately with the general public; and (6) ability to accept instructions and respond appropriately to criticism from supervisors. Tr. 374-75. Of the remaining 14 categories, including the ability to understand, remember and carry out very short and simple instructions, Dr. Haskins found that Duck was not significantly limited. Tr. 374. Dr. Haskins opined that Duck "retains the ability to understand and recall simple tasks in a work environment without a lot of social interaction." Tr. 376. Since there was no treating source, Dr. Haskins gave controlling weight to Dr. Lyall's consultative examination report and she also concluded that Duck's allegations were not fully supported by the objective medical evidence of record and, thus, considered Duck's allegations to be only partially credible. Tr. 376.

In the Psychiatric Review Technique, Dr. Haskins indicated that Duck suffers from major depressive disorder, recurrent, moderate and has borderline intellectual functioning. Tr. 381, 382. However, she opined that neither of those conditions satisfied a Listing. Tr. 381, 382. In assessing the "B" criteria of the Listings, Dr. Haskins also opined that Duck has mild limitations in her activities of daily living and moderate limitations in maintaining ...

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