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Jones v. Berryhill

United States District Court, M.D. Tennessee, Northeastern Division

August 2, 2019




         This is 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.

         As a 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.

         Plaintiff's 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.

         In the 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 accommodations.” Id.

         Plaintiff 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.

         This 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 appeal.

         Substantial 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).

         The 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 clearly-erroneous standard).

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

         Upon 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 ...

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