United States District Court, M.D. Tennessee, Northeastern Division
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE.
a Social Security appeal. In response to the recommended
denial of his Motion for Judgment on the Administrative
Record (Doc. No. 13), Plaintiff has filed Objections (Doc.
No. 23) to the Magistrate Judge's Report and
Recommendation (“R&R”) (Doc. No. 16).
Spanning 34-pages, those objections could just as well have
served as Plaintiff's opening brief, notwithstanding Rule
72(b)'s requirement, that “a party . . . file
specific written objections to the proposed findings
and recommendations.” Fed.R.Civ.P. 72(b)(1) (emphasis
added). Nevertheless, the Court has carefully reviewed those
objections, and considered the record as a whole. Based upon
that de novo review, as required by Rule 72(b)(3),
the R&R will be accepted and the final decision of the
Commissioner denying benefits will be affirmed.
preliminary matter, Plaintiff devotes almost an entire page
of his Objections to arguing that “the specification of
his alleged disability onset date (AOD) as 05/01/15 is
nonsensical and inexplicable.” (Doc. No. 23 at 2).
Plaintiff does not identify precisely where in the 1599-page
Administrative Record (“AR”) that date appears.
As it turns out, however, that date is listed in the
introductory section of the R&R when the Magistrate Judge
stated that Plaintiff alleges “he ha[s] been disabled
since May 1, 2015.” (Doc. No. 16 at 2). Far from being
inexplicable, it is explicable as a simple typographical
error where 2015 was mistakenly substituted for 2017. Indeed,
elsewhere in the R & R, the Magistrate Judge correctly
identifies the correct onset date as being May 1, 2017. That
has been Plaintiff's position from the start, the ALJ
operated on the assumption that was the onset date, and the
Magistrate Judge, despite the slip of a finger on the
keyboard, also recognized 2017 to be the correct year. In
short, this is a non-issue that really would have been better
left unraised. Accordingly, the Court turns to the more
pressing substantive questions presented by this appeal.
primary and overriding objection is that the ALJ did not give
controlling weight to treating psychologist Douglas
Herr's diagnosis that Plaintiff was disabled as a result
of post-traumatic stress disorder (“PTSD”) and
bipolar disorder. This diagnosis is in the form of a letter
addressed to Plaintiff's counsel and made a part of the
administrative record in this case.
letter, Dr. Herr states that he met Plaintiff five times for
one hour, and twice for two hours between February 2, 2018,
and the date of the administrative hearing on March 29, 2018.
After noting Plaintiff “scored 29/30 on a Folstein
Mini-Mental Status Exam indicating that his cognition is
likely grossly intact and supporting the hypothesis that
[Plaintiff] was not malingering, ” Dr. Herr based his
assessment “on information gathered from [Plaintiff]
and his wife, Vanessa Jones, during the course of his
treatment.” (AR at 1523). Although treatment was
“in its early stages, ” Dr. Herr believed that
the PTSD could be traced back to Plaintiff's military
service as a combat helicopter pilot, and his failure to
“decompensate . . . until leaving the military, though
he had begun to experience distress while still on active
duty at the time of his retirement.” (Id.)
Even though Dr. Herr opined that Plaintiff was
“generally able to maintain activities of daily living,
” he was “not able to look after himself
administratively.” (Id.). Dr. Herr further
opined that Plaintiff had “severe symptoms that are
difficult to categorize with complete confidence, ”
that he might “not sleep for days, ” and
“his attentional capacity is severely
compromised.” (Id. at 1524). As for
employment, Dr. Herr stated that Plaintiff “is unable
to work a full week, be around coworkers or the public, or
maintain a full or even half-day consistently without
insists that the ALJ did not properly consider the record
because substantial evidence supports Dr. Herr's
conclusion that Plaintiff is disabled and unable to hold a
job. In both his initial Motion for Judgment and in his
Objection, Plaintiff details the evidence in the record
lending support to that conclusion. For example, Plaintiff
begins by describing his experience as a helicopter pilot in
Iran and Afghanistan who was deployed four times for a total
of 36 months between 2009 and 2014. Plaintiff then notes that
(1) he was diagnosed as having “adjustment
disorder” after he underwent “behavioral health
treatment” in 2010 and 2012; (2) his mind started
“slipping” while he was stationed in Hawaii, and
so his wife “shadowed” him daily to insure that
he did not miss appointments; (3) he was seen at the
Schoefield Barracks Health Clinic in Hawaii on October 25,
2016 and diagnosed by a licensed clinical social worker
(“LCSW”) with “adjustment disorder with
anxiety by history”; (4) he was prescribed Effexor, an
anti-depressant, on November 23, 2016, as well as on December
8, 2016; (5) he reported to Dr. John Bonness on December 17,
2016 that he was experiencing PTSD, anxiety, agoraphobia, and
depression, among other things; (6) he met with a LCSW and a
psychiatrist in December and early January 2017; (7) on
January 17, 2017, he was administered the CAPS 5 Assessment
and diagnosed as having PTSD; (8) a week later, as he was
“out-processing” from the military, a LCSW noted
that Plaintiff was still taking Effexor and confirmed the
PTSD diagnosis; (9) he and his wife relocated to Tennessee on
February 3, 2017, and the Alvin York VA Medical Center became
his medical treatment provider; (10) Dr. Gunther, PhD,
completed an “Initial PTSD Disability Benefits
Questionnaire” on May 25, 2017, diagnosed PTSD, and
noted that it was causing “Occupational And Social
Impairment with Reduced Reliability and Productivity”;
(11) on June 30, 2017, Plaintiff was seen at the VA for a
“Post Deployment Transition” evaluation, at which
time Dr. David McCoy continued the Effexor prescription to
treat his “adjustment disorder with mixed emotional
features” and “chronic PTSD”; and (12) at
some point shortly after separating from the Army on April
30, 2017, Plaintiff was given a 100% disability rating by the
VA, of which 50% was attributed to PTSD.
recitation of the evidence favorable to Plaintiff could be
viewed as setting forth a clear trajectory of his PTSD from
being some sort of an “adjustment disorder” in
2010, to fullblown and debilitating PTSD after he left the
service in 2017. At a minimum, it could be seen as
“substantial evidence that support's Dr. Herr's
diagnoses and assessment” as Plaintiff argues. (Doc.
No. 20). But whether substantial evidence supports Dr.
Herr's conclusion is really beside the point in this
evidence can support both Dr. Herr's assessment,
and the ALJ's decision, i.e. they are
not mutually exclusive and can co-exist. This is because
“‘[t]he substantial-evidence standard presupposes
that there is a of choice within which the decisionmakers can
go either way, without interference by the
courts.'” Blakely v. Comm's of Soc.
Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).
“Therefore, if substantial evidence supports the
ALJ's decision, this Court defers to that finding
‘even if there is substantial evidence in the record
that would have supported an opposite conclusion.'”
Id. (quoting Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997).
critical question in this case, then, is whether substantial
evidence supports the ALJ's decision, not whether
substantial evidence also support's Dr. Herr's
conclusion. It does when the Court considers that review of
an ALJ's conclusion is “highly deferential”
under the “substantial evidence” standard.
Somberg on behalf of Somberg v. Utica Cmty. Sch.,
908 F.3d 162, 173 (6th Cir. 2018); accord Con-Ag, Inc. v.
Sec'y of Labor, 897 F.3d 693, 699 (6th Cir. 2018).
As the Supreme Court recently explained in the context of a
Social Security appeal:
The phrase “substantial evidence” is a
“term of art” used throughout administrative law
to describe how courts are to review agency factfinding.
T-Mobile South, LLC v. Roswell, 574 U.S. __, __, 135
S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the
substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains
“sufficien[t] evidence” to support the
agency's factual determinations. Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed.
126 (1938) (emphasis deleted). And whatever the meaning of
“substantial” in other contexts, the threshold
for such evidentiary sufficiency is not high. Substantial
evidence, this Court has said, is “more than a mere
scintilla.” Ibid.; see,
e.g., Perales, 402 U.S. at 401, 91 S.Ct.
1420 (internal quotation marks omitted). It means-and means
only-“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206.
See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct.
1816, 144 L.Ed.2d 143 (1999) (comparing the
substantial-evidence standard to the deferential
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
review of the record before her, the Administrative Law Judge
discounted Dr. Herr's opinion. She wrote:
The undersigned finds Dr. Herr's letter . . . to be
persuasive inasmuch as it shows that the claimant has been
greatly affected by his experiences in the military. However,
the remainder of his assessment is not persuasive as it is
not consistent with other evidence, including the
claimant's earnings record and his largely unremarkable
treatment records. Further, Dr. Herr's assessment is not
supported by the objective medical evidence included in his
letter, which was an unremarkable cognition score. His
assessment was otherwise based on reports from the claimant
and his wife. The evidence as a whole does not show that the
claimant has been affected to the point where he is unable to
perform unskilled work within the above residual functional
capacity. The claimant provided evidence as to his past
traumatic events at Exhibits 1lE and 9F, but the evidence
only documents events from 2005, and the claimant performed
substantial gainful activity for about eleven years after
that. Further, the treatment records from the period in
question are largely unremarkable except as to the
claimant's reported complaints and some abnormal mood
findings. The undersigned also finds that Dr. Herr's
assessment is not persuasive given his brief length of
treatment with the claimant. The claimant has only been
getting treatment from Dr. Herr since February 2018, and Dr.
Herr acknowledged that his information was gathered from the
claimant and his wife ...