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Hickman v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

February 12, 2018


          George C. Smith, Judge



         Plaintiff, Michael Brian Hickman, brings this action under 42 U.S.C. § 405(g) for a review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Social Security Disability Insurance benefits and Supplemental Security Income benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 23-1), the Commissioner's Memorandum in Opposition (ECF No. 28), Plaintiff's Reply (ECF No. 30), and the administrative record (ECF Nos. 19 & 20). For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that the Commissioner's decision be AFFIRMED.

         I. BACKGROUND

         Although not in consideration in this matter, by way of background, Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security Income on September 27, 2006. Following initial administrative denials of his applications, Administrative Law Judge Timothy Keller affirmed the denials of Plaintiff's applications on September 16, 2009. (See R. at 2109.) On June 21, 2010, subsequent review by the Appeals Council found no basis to review the decision (Id. at 193-95.)

         Plaintiff filed another application for disability insurance benefits and supplemental security income benefits in August 2010. The state agency denied these applications initially and upon reconsideration. On June 8, 2011, Administrative Law Judge Paul Yerian denied Plaintiff's request for a hearing as untimely. (R. at 246-51.)

         On July 12, 2011, Plaintiff filed the application at issue for disability insurance benefits and supplemental security income benefits. (R. at 350.) Plaintiff alleges the disabling condition started on June 22, 2010. (Id. at 360.) Plaintiff contends he is disabled as a result of a number of alleged impairments, including asthma, neck problems, symmetric arthritis, depression, and anxiety. (Id. at 371.) The state agency denied his most recent application for benefits. (Id. at 255-83.) Plaintiff then had a hearing before Administrative Law Judge Thomas Wang (the “ALJ”) on May 17, 2013. (Id. at 45-85.) The ALJ denied Plaintiff's application for benefits in a written opinion dated July 10, 2013. (Id. at 19-32.) The Appeals Council denied Plaintiff's request for review, prompting Plaintiff to commence in action in this Court. On August 21, 2015, the parties agreed to remand the action to the Commissioner for further consideration. (Id. at 2247-48.) The Appeals Council instructed the ALJ to give further consideration to the non-treating source opinions of Drs. Marc Miller and Christopher Ward. (Id. at 2250-53.)

         The ALJ held another administrative hearing on January 20, 2016, and issued a written opinion on February 25, 2016, denying Plaintiff's claims for disability. (R. at 2109-28.) The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff timely filed this action for judicial review.

         In his Statement of Errors, Plaintiff raises a single issue. Specifically, Plaintiff asserts that the ALJ erred in his consideration and weighing of the opinion of consultative examiner Dr. Marc Miller, Ph.D. According to Plaintiff, the ALJ failed to sufficiently explain why he assigned only little weight to Dr. Miller's opinion yet credited the opinion of Dr. Christopher D. Ward, Ph.D. In Plaintiff's view, both opinions support his application for disability. Plaintiff further posits that his treatment records support Dr. Miller's findings. Finally, Plaintiff emphasizes that Dr. Miller assigned him a Global Assessment of Functioning (“GAF”) score of 46 and that both Drs. Miller and Ward found him to be credible.[1]

         In her Memorandum in Opposition, the Commissioner counters that the ALJ reasonably considered weighed Dr. Miller's opinion when determining Plaintiff's RFC. (Comm'r's Mem. in Opp. 5, ECF No. 28.) The Commissioner further posits that the ALJ offered good reasons for discounting Dr. Miller's opinion and that the RFC assessed reasonably accounted for Plaintiff's limitations and is supported by substantial evidence.


         A. Dr. Marc Miller

         Consultative Examiner Marc Miller, Ph.D. conducted a psychological evaluation of Plaintiff on October 28, 2010. (R. at 1296-1300.) Dr. Miller noted that Plaintiff “appeared to be a reliable, credible informant.” (Id. at 1298.) Plaintiff reported that “he had no friends.” With regard to Plaintiff's behavior, Dr. Miller observed as follows: “[Plaintiff] presented himself as very depressed. He was very sarcastic, agitated and frustrated throughout the interview.” (Id.) Dr. Miller observed a tremor in Plaintiff's left hand and noted that Plaintiff talked fast and in excess during the interview. (Id.) Dr. Miller also noted that Plaintiff had trouble focusing during the interview, and that the “[c]onversation was intelligible, he spoke in 2 to 8 word sentences.” (Id.) Plaintiff ranked his depression level at ¶ 7 or 8 on scale of 1-10, and Dr. Miller commented that he “would place it at ¶ 8 without medication.” (Id.) Dr. Miller also agreed with Plaintiff's self-reported anxiety ranking of 7 out of 10. (Id.) Plaintiff reported that he has anxiety attacks when around crowds or people and also noted “difficulty with agitation, impatience, and irritability in regard to his pain.” (Id.)

         Dr. Miller assessed Plaintiff's intellect as in the “borderline range.” He noted that Plaintiff's “concentration is poor” and opined that Plaintiff has “moderate problem solving and poor organizational abilities.” (Id.) He observed, however, that Plaintiff could “recall six numbers forward, and four in reverse.” (Id.) Plaintiff told Dr. Miller that he could follow one-step instructions but that he “used to be a multi-task” person. (R. at 1299.) Dr. Miller noted that Plaintiff's “coping skills are poor” and that he can “become[] overwhelmed quickly.” (Id.) With regard to his lack of income, Plaintiff placed his stress level at ¶ 8 on a 1-10 scale. With respect to his daily activities, Plaintiff reported he had a driver's license but does not drive and has no hobbies. (Id.) Plaintiff also reported he could “prepare his own meals, laundry, cleaning and dishes and grocery shopping, ” as well as manage his own money. (Id.)

         Dr. Miller offered the following opinions:

[Plaintiff's] cognitive ability to understand, remember and carry out routine instructions indicate no impairment.
Ability to interact with coworkers, supervisions and the public, indicate marked impairment, due to his agitation, irritability, temper, depression, and avoidance of others.
The ability to maintain attention span and concentration indicates moderate impairment, due to anxiety.
The ability to deal with stress and pressure in a work setting notes marked impairment.
Persistence in task completion, indicates marked impairment.
The GAF function level is approximately 50, in regard to his prior injury, numerous health issues, pain, limited income.

(R. at 1299-1300.)

         Dr. Miller diagnosed Plaintiff with a severe pain disorder with psychological factors; a moderate to severe dysthymic disorder and generalized anxiety disorder; and described his psychosocial stressor as “poor, ” due to “limited income, years of medical care, pain clinics, [and] psychiatric counseling.” (Id. at 1300.)

         B. Dr. Christopher Ward

         Plaintiff underwent another psychological evaluation on April 6, 2012, with psychologist Christopher Ward, Ph.D. upon referral from the Ohio Division of Disability Determination (“DDD”). (R. at 1915.) Plaintiff reported that he completed school through the ninth grade and had problems engaging socially while at school. (Id. at 1916.) Plaintiff denied a history of alcohol or drug abuse, but did report legal convictions of DUIs. (Id.) With regard to his medical history, Plaintiff indicated that he underwent a significant weight loss which he attributed to less appetite and a nervous stomach. (Id.) Plaintiff described his medical conditions as follows: “a stroke on his right side, fibromyalgia, arthritis, hypertension, GERD, asthma, COPD, left sciatic nerve pain, and osteoarthritis. (Id.) Plaintiff described his functional limitations in conjunction with his medical issues as “difficulty walking, standing, sitting, lifting and bending.” (Id.) Plaintiff indicated that he was taking the following medications: “Combivent, Pravastatin, Propranolol, Cymbalta and Lyrica[]” at the time of the evaluation. (Id.)

         Plaintiff also reported “a history of medical problems related to mood and anxiety problems.” (R. at 1916.) Dr. Ward observed that Plaintiff conversed at a normal speed and that his “language skills were adequate.” (Id.) He also noted that Plaintiff repeated questions due to his focus problems. (Id.) Citing Plaintiff's “phraseology, grammatical structure, and vocabulary[, ]” Dr. Ward assessed Plaintiff to be in the low-average range of intellectual functioning. (Id.) Dr. Ward stated that Plaintiff “presented as depressed and agitated during the evaluation. His affect was tearful at points.” (Id.) Plaintiff described symptoms of depression, difficulties sleeping, loss of appetite, and problems with boredom and anger, as well as symptoms of anxiety such as chest pains, hot flashes, and breathing problems. (Id. at 1918.) Dr. Ward assessed Plaintiff's remote recall as adequate and his short term memory as below average, noting that Plaintiff was only able to recall four digits forward and three digits backward. (Id.) Dr. Ward concluded that Plaintiff “did not appear to exaggerate or minimize his difficulties, ” explaining that Plaintiff “did not report unusual or unlikely combinations of symptoms. [Plaintiff] reported areas of intact function in addition to reporting symptoms.” (Id. at 1917-18.)

         Dr. Ward offered the following functional assessment of Plaintiff's ability to understand, remember, and carry out instructions: “[t]he claimant's abstract reasoning skills are below average which may lead to difficulty understanding instructions[;] [t]he claimant's short term memory skills are below average which may lead to difficulty remembering instructions[;] [and] [t]he claimant was able to converse effectively to complete the evaluation[.]” (Id. at 1919.) With regard to Plaintiff's attention and concentration limits, Dr. Ward determined, “[t]he claimant had difficulty completing serial 7s but effectively completed a serious 3s task which suggest some difficulty with attention and focus[;] [t]he claimant displayed effective task persistence when answering questions[;] [and] [t]he claimant displayed indications of distraction during the evaluation including requests to repeat questions[.]” (Id. at 1920.) Dr. Ward further opined as follows: “[t]he claimant presented as depressed during the evaluation which may affect level of engagement with co-workers and supervisors[;] [t]he claimant has no friends and ...

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