REPORT AND RECOMMENDATION
KAREN L. LITKOVITZ, Magistrate Judge.
Plaintiff Michael Hibbard brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). This matter is before the Court on plaintiff's statement of errors (Doc. 7), the Commissioner's response in opposition (Doc. 12), and plaintiff's reply memorandum (Doc. 13).
I. Procedural Background
Plaintiff filed his applications for DIB and SSI in October 2012, alleging disability since January 1, 2007 due to anxiety, panic attacks, obsessive compulsive disorder, schizophrenia, hallucinations, and depression. Plaintiff's applications were denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo video hearing before administrative law judge ("ALJ") Frederick Andreas. Plaintiff and a vocational expert ("VE") appeared and testified at the ALJ hearing. On December 16, 2014, the ALJ issued a decision denying plaintiff's applications. Plaintiff's request for review by the Appeals Council was denied, making the ALJ's decision the final administrative decision of the Commissioner.
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A) (DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:
Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§ 416.920(a)(4)(i)-(v), 416.920(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id.; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).
B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:
C. Judicial Standard of Review
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance. . . ." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the Commissioner's findings are supported by substantial evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the disability determination. Even if substantial evidence supports the ALJ's conclusion that the plaintiff is not disabled, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746). See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ's decision was otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving weight to treating physician's opinion, thereby violating the agency's own regulations).
D. Specific Error
On appeal, plaintiff raises a single issue: whether the ALJ erred by failing to accept the limitations set forth by consultative psychological examiner Nicole Leisgang, Psy.D., even though the ALJ assigned significant weight to her opinion. (Doc. 7 at 1). Plaintiff argues the ALJ should have found that plaintiff meets the criteria for anxiety related disorders under Listing 12.06 because Dr. Leisgang assigned plaintiff a GAF score of 50
1. The ALJ properly assessed Dr. Leisgang's opinion in relation to Listing 12.06.
Listing 12.06 may be satisfied if there is medical evidence of "[r]ecurrent severe panic attacks . . . at least once a week" that results in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06(A)(3), (B).
The ALJ determined that plaintiff's condition did not meet or medically equal Listing 12.06 because he had no episodes of decompensation and had only mild restriction in activities of daily living, moderate difficulties in social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. (Tr. 14-15). As to social functioning, the ALJ noted that plaintiff maintains relationships with his sister, mother, sons, girlfriend, and a "good friend in Kentucky." (Tr. 14). The ALJ found that plaintiff is able to communicate effectively and while he alleges difficulties with comprehension, Dr. Leisgang "observed none that would limit his ability to interact with others." (Id.). The ALJ also cited Dr. Leisgang's opinion in finding that while plaintiff struggles to trust and interact with others outside of his family, "he is able to leave the home and interact with medical professionals despite signs of anxiety," which "demonstrates that any difficulties in social functioning are neither marked nor extreme." (Id.).
As to concentration, persistence, and pace, the ALJ found that while plaintiff's anxiety results in "some difficulty," plaintiff "maintains adequate short-term memory, and is able to perform simple arithmetic." (Tr. 15). Further, the ALJ found that "[a]lthough [plaintiff] is sensitive to stress, his ability to sustain concentration during the consultative examination and the hearing demonstrates that any limitations are neither marked nor extreme." (Id.).
As to Dr. Leisgang's opinion, the ALJ gave it significant weight. (Tr. 17). The ALJ summarized Dr. Leisgang's opinion as follows: "[Dr. Leisgang] indicates [plaintiff] has moderate limitations in functioning with a GAF of 50 and could become overwhelmed in stressful situations, however, he was able to converse appropriately, he could follow conversationally, he could perform simple calculations." (Id.). The ALJ found Dr. Leisgang's observations to be "consistent with the treatment records, which demonstrate [plaintiff] is able to leave the home independently, he is able to maintain close relationships, and he is able to communicate effectively despite anxiety and stress." (Id.). The ALJ also stated that "[plaintiff] acknowledges donating plasma, collecting scrap metal, and maintaining a fitness regimen, which is consistent with an individual with no more than moderate limitations." (Id.).
The record shows that Dr. Leisgang examined plaintiff for disability purposes in December 2012. (Tr. 293-99). Plaintiff reported "that he has been with his current girlfriend for seven months and gets along well with her." (Tr. 294). He reported that he also gets along well with his two sons but has only limited contact with them. (Id.). Plaintiff reported that when he was in school, "he got along well with classmates but preferred just a small group of friends." (Id.). He reported that when he was working he was "at times irritated with coworkers or supervisors but stated that `I bite my tongue and go on.'" (Tr. 295). Plaintiff endorsed panic attacks three to four times per week. (Id.). He also endorsed "sad mood, anhedonia, easy distractibility, and feelings of hopelessness and helplessness." (Id.). Further, plaintiff reported that he has difficulty trusting others. (Id.).
Concerning activities of daily living, plaintiff reported that he lives with his sister, girlfriend, and mother. (Id.). Plaintiff stated that he works occasionally through temporary service agencies, donates blood plasma, and receives food stamps. He stated that he attends to grooming and hygiene, performs household chores, shops for groceries, manages his finances and paperwork, listens to music, and occasionally reads or works on the computer. Plaintiff has regular contact with his family but stated that he does not often socialize beyond his family because "I don't trust nobody." (Id.). However, he stated that he met his girlfriend "through a friend." (Id.).
On mental status examination, Dr. Leisgang noted that plaintiff was a "cooperative man with whom rapport was adequately established." (Id.). He "appeared to be anxious but displayed no other eccentricities of manner." (Tr. 296). Plaintiff "appeared to be adequately motivated, although his task persistence appeared to be adversely affected by his anxious mood." (Id.). Dr. Leisgang noted that plaintiff's "statement that he has difficulty trusting others suggests that he may be at times suspicious of others, perhaps misinterpreting the behavior and statements of those around him." (Id.). Dr. Leisgang observed signs that plaintiff "appeared to be rather anxious as he displayed noticeable facial flushing, bounced his leg, maintained variable eye contact, and tended to ramble in conversation." (Id.). Plaintiff's "remote recall was adequate and his short-term memory skills were adequate as he could recall six digits forward and five digits backward." (Id.). Dr. Leisgang found that plaintiff's "attention and concentration skills were somewhat limited" and he appeared "to be easily distracted during the interview session." (Id.).
Dr. Leisgang diagnosed a panic disorder without agoraphobia and assigned a GAF score of "50 (Current) Serious Symptomatology." (Tr. 297). Concerning plaintiff's ability to understand, remember, and carry out instructions, Dr. Leisgang stated:
(Tr. 298). Concerning plaintiff's ability to maintain attention, concentration, persistence, and pace, Dr. Leisgang stated:
(Id.). Concerning plaintiff's ability to respond appropriately to supervision and to coworkers in a work setting, Dr. Leisgang stated:
(Id.). Concerning plaintiff's ability to respond appropriately to work pressures, Dr. Leisgang stated:
Based on this record, the ALJ properly considered Dr. Leisgang's opinion in assessing whether plaintiff's condition meets or medically equals Listing 12.06. Plaintiff argues that Dr. Leisgang's findings "are indicative of marked restrictions" in plaintiff's social functioning and ability to maintain concentration, persistence, and pace. (Doc. 7 at 4). An impairment is "marked" when it is "more than moderate but less than extreme." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C). "A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis." Id.
Relying on Dr. Leisgang's opinion, the ALJ determined that plaintiff's difficulties in social functioning were only moderate because he was able to interact with his sons, sister, mother, girlfriend, and a good friend in Kentucky. (Tr. 14, 294-95). The ALJ accurately noted Dr. Leisgang's finding that plaintiff was able to communicate effectively. (Tr. 14, 298). The ALJ also reasonably noted that although plaintiff alleged difficulties in comprehension, Dr. Leisgang did not observe any such difficulties during the interview "that would limit his ability to interact with others." (Tr. 14; see also Tr. 293-98). Thus, the ALJ's finding that plaintiff had only moderate difficulties in social functioning was one reasonable interpretation of Dr. Leisgang's opinion. See Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) ("The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion.") (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). See also Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) ("Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.").
As to concentration, persistence, and pace, the ALJ noted Dr. Leisgang's finding that plaintiff had some difficulty in attention and concentration, but the ALJ concluded that this translated to only moderate difficulties. (See Tr. 15, 296). The ALJ accurately noted Dr. Leisgang's finding that plaintiff's short-term memory was adequate. (Id.). Relying on plaintiff's "ability to sustain concentration during the consultative examination and the hearing," the ALJ concluded that his difficulties in this area were neither marked nor extreme. (Tr. 15). Again, this was one reasonable interpretation of the evidence. See Buxton, 246 F.3d at 772; Her, 203 F.3d at 389-90.
Plaintiff argues that "Dr. Leisgang never expressly opined moderate restrictions in any area" and "her [statements] concerning [plaintiff's] social functioning and ability to maintain concentration, persistence, and pace are indicative of marked restrictions." (Doc. 7 at 4). However, Dr. Leisgang did not expressly find that plaintiff had marked restrictions in either of these areas of functioning. (See Tr. 298). In fact, she did not provide any specific findings using the terminology of the Social Security regulations as to the seriousness of plaintiff's restrictions in any of the functional areas. (See id.). Moreover, when assessing whether plaintiff met or equaled Listing 12.06, the state agency psychologists, who reviewed Dr. Leisgang's report as well as the other evidence of record, opined that plaintiff had only "moderate" difficulties in maintaining social functioning and concentration, persistence, or pace. (Tr. 74, 85, 97, 107). These opinions further support the ALJ's finding of "moderate" limitations in these areas of functioning. Additionally, none of plaintiff's treating sources opined that he was more than moderately limited in his ability to maintain social functioning or concentration, persistence, or pace.
While plaintiff is correct that Dr. Leisgang assessed a GAF score of 50, which is on the cusp between serious (GAF 41-50) and moderate (GAF 51-60) symptomatology, a finding of serious symptomatology in the parlance of the DSM-IV does not necessarily translate to marked limitations of the specific functional areas at issue in the parlance of the Social Security regulations. Accordingly, Dr. Leisgang's opinion (to which the ALJ gave significant weight) does not require a finding of marked restrictions in social functioning or the ability to maintain concentration, persistence, or pace. Further, as described above, the ALJ's interpretation of the evidence, including Dr. Leisgang's opinion, to find that plaintiff did not have the marked restrictions in functioning necessary to satisfy the requirements of Listing 12.06 was reasonable and supported by substantial evidence.
2. The ALJ properly assessed Dr. Leisgang's opinion in determining plaintiff's RFC.
Plaintiff also argues that the ALJ's RFC determination disregarded Dr. Leisgang's opinion "concerning [plaintiff's] easy distractibility, task persistence, and feeling easily overwhelmed with frequent panic attacks." (Doc. 7 at 5) (emphasis in original).
As already noted above, Dr. Leisgang found that plaintiff was "easily distracted during the interview session" and his "task persistence appeared to be adversely affected by his anxious mood." (Tr. 296). Further, Dr. Leisgang noted that plaintiff reported experiencing panic attacks three or four times a week. (Tr. 295).
The ALJ's RFC determination accounted for Dr. Leisgang's finding that plaintiff has problems with distractibility and task persistence by limiting plaintiff to "routine duties with no fast pace production quotas . . . in which duties are routine and predictable meaning duties do not change." (Tr. 15). See Kepke v. Comm'r of Soc. Sec., 636 F. App'x 625, 635 (6th Cir. 2016) (rejecting plaintiff's argument that ALJ's hypothetical limiting plaintiff to simple, unskilled work in a low stress job was insufficient to convey moderate limitations in concentration, persistence, and pace); Smith-Johnson v. Comm'r of Soc. Sec., 579 F. App'x 426, 437 (6th Cir. 2014) ("[T]he limitation to simple, routine, and repetitive tasks adequately conveys [plaintiff's] moderately limited ability `to maintain attention and concentration for extended periods.'"). This is also consistent with the state agency consultants' opinions about plaintiff's RFC. (Tr. 76, 87, 99, 109).
As to plaintiff's panic attacks, Dr. Leisgang noted plaintiff's self-report that he experiences such attacks three or four times a week, but she did not make any independent finding concerning the frequency of plaintiff's attacks. (See Tr. 295, 298). In describing potential limitations resulting from plaintiff's panic attacks, Dr. Leisgang did not make specific recommendations but opined only that plaintiff "may have difficulty responding appropriately to more stressful situations" due to his anxiety and panic disorder. (Tr. 298). The ALJ's RFC determination accounted for Dr. Leisgang's opinion by limiting plaintiff to: (1) "routine duties with no fast pace production quotas" in which duties do not change; (2) no interaction with the public; and (3) only "superficial and brief" interaction with coworkers and supervisors, "meaning no arbitration, negotiation or conflict resolution, no management duties, and no responsibility for the health, safety and welfare of others." (Tr. 15). See Koster v. Comm'r of Soc. Sec., 643 F. App'x 466, 477 (6th Cir. 2016) (noting that ALJ's RFC determination limited plaintiff to "low stress work meaning no arbitration, negotiation, confrontation, responsibility for the safety of others, and no supervisory responsibility"); LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 382 (6th Cir. 2013) (noting that ALJ's RFC determination defined "low stress" as "low production quotas, which also includes no high production pace"); White v. Comm'r of Soc. Sec., 572 F.3d 272, 280 (6th Cir. 2009) (noting that ALJ's RFC determination defined "low stress" as a work environment where there is "no work with the general public or in close contact with co-workers").
Based on the foregoing, the ALJ's RFC determination properly accounted for the limitations identified in Dr. Leisgang's report concerning distractibility, task persistence, and workplace stress. Accordingly, plaintiff's assignment of error should be overruled.
The decision of the Commissioner be
NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b),