Brenda Deaton v. Commissioner of Social Security , 315 F. App'x 595 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0181n.06
Filed: March 5, 2009
No. 08-5249
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRENDA DEATON, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
COMMISSIONER OF SOCIAL )
SECURITY, )
OPINION
)
Defendant-Appellee. )
_______________________________________
Before: MOORE and WHITE, Circuit Judges; and VINSON,* District Judge.
C. ROGER VINSON, District Judge. The plaintiff-appellant, Brenda Deaton, applied for
Supplemental Security Income Benefits on or about November 26, 2002. The defendant-appellee,
the Commissioner of Social Security, denied her application, the district court affirmed that decision,
and Deaton now appeals. We AFFIRM.
Deaton alleged that she became disabled on November 9, 1992, due to arthritis, high blood
pressure, diabetes, gastroesophagael reflux, carpal tunnel syndrome, fibromyalgia, heart disease,
hypothyroidism, migraine headaches, major depression, and a “bad right leg.” In her application
materials, Deaton answered “yes” when asked if she could read and write more than her name. See
*
The Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
No. 08-5249
Deaton v. Commissioner of Social Security
Transcript of the Administrative Record (“Tr.”) 88.1 A hearing was held before the ALJ on April 28,
2005. Deaton testified that she was 44 years of age; she had never been married; she had owned her
own home for seventeen years (which she received when her mother and her boyfriend died); she
lived by herself and was able to cook for and feed herself (although her niece lived nearby and often
helped); she was 5'4" and weighed approximately 195 pounds; she had a current drivers’ license with
no restrictions; she completed the eighth grade and never received a GED; she had no vocational
training; and she was not currently employed. She testified that she had had depression for years and
that it was her “most serious medical problem.” Her depression caused her to cry frequently, and it
led to problems sleeping, concentrating, and remembering. She took medication for her diabetes and
high blood pressure, and she had arthritis, which caused pain in her feet, knees, legs, back, hands,
elbows and neck. She had surgery on her right hand for carpal tunnel syndrome three years prior, and
she had shown some improvement following the surgery, but she testified that “now it’s getting back
worse again.” She was supposed to have surgery on her left hand also, but she could not afford it.
Deaton testified that she was hospitalized 25 years earlier when she attempted, or thought of
attempting, suicide. With respect to her current limitations, she testified that, because of her arthritis,
she could sit for approximately 15 to 20 minutes before she had to stand up or lie down to relieve
the pain. She used a heating pad and over-the-counter pain creams to help with the pain (particularly
in the morning). She would also get migraine headaches two to three times a week, and she had an
1
On at least two other occasions during the application process Deaton stated that she was
to some degree literate. See Tr. 98, 106 (answering yes to the questions: “Can you read and write?”).
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Deaton v. Commissioner of Social Security
underactive thyroid, which manifested itself with tumors on both sides and a goiter. She testified to
using a cane to assist in walking for the previous four years.
After the hearing, the ALJ concluded that Deaton, while suffering from a variety of ailments,
had the residual functional capacity to perform a range of sedentary assembly and inspecting jobs.
Based on the testimony of vocational expert (“VE”) Dr. James H. Miller, the ALJ further determined
that there were a significant number of such jobs in the national economy. Consequently, the ALJ
denied Deaton’s application for benefits. The Appeals Council declined to review the ALJ’s
decision, and, as noted, the decision was later affirmed by the district court.
Our review is limited to determining whether there is “substantial evidence” in the record to
support the ALJ’s decision and whether the ALJ applied the proper legal standards. See, e.g., Key
v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997); Cutlip v. Secretary of Health and Human Servs., 25
F.3d 284, 286 (6th Cir. 1994). The Supreme Court has stated that substantial evidence means “‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Garner
v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91
S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). If the ALJ’s decision is supported by substantial evidence, we
must affirm because “the court may not try the case de novo, nor resolve conflicts in evidence, nor
decide questions of credibility.” Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987); see also Bradley
v. Secretary of Health and Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). “The decision of an
ALJ is not subject to reversal, even if there is substantial evidence in the record that would have
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Deaton v. Commissioner of Social Security
supported an opposite conclusion, so long as substantial evidence supports the conclusion reached
by the ALJ.” Key, supra, 109 F.3d at 273.
Deaton essentially raises four claims on appeal. Her first and second claims are that the ALJ
improperly rejected the assessment of restrictions offered by her treating mental health source and,
relatedly, that the ALJ failed to provide “good reasons” for doing so. Third, Deaton claims that VE
Miller failed to carry the Commissioner’s ultimate burden of proof. Finally, she claims that the ALJ
mechanically applied the age categories in the Medical Vocational Guidelines.
As for her first two claims of error, Deaton argues that the ALJ erred in rejecting, without
good reason, the assessment of her treating mental health source. Specifically, she contends that the
ALJ erred in not accepting two assessments of Dr. Lea Hayag, who became her treating psychiatrist
in or around February 2003. On November 19, 2003, Dr. Hayag had diagnosed Deaton with “Major
Depressive Disorder, Single Episode, Severe, w/ Psychosis, Dysthymic Disorder.” Then, on March
4, 2004, Dr. Hayag opined that Deaton had limited, but satisfactory, ability in the following areas:
(i) deal with the public; (ii) use judgment; (iii) interact with supervisors; (iv) function independently;
(v) understand, remember and carry out simple job instructions; (vi) maintain personal appearance;
and (vii) demonstrate reliability. Dr. Hayag found her to be seriously limited, but not precluded, in
other areas: (i) deal with work stresses; (ii) maintain attention and/or concentration; (iii) behave in
an emotionally stable manner; and (iv) relate predictably in social situations. Deaton claims that the
ALJ improperly disregarded this assessment of her treating psychiatrist, and instead relied on her
own observations and interpretation of the evidence.
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No. 08-5249
Deaton v. Commissioner of Social Security
It is true that greater deference is generally given to the opinions of treating physicians than
to those of non-treating physicians. See, e.g., Rogers v. Commissioner of Social Security, 486 F.3d
234, 242 (6th Cir. 2007). However, this court “has consistently stated that [the Commissioner] is not
bound by the treating physician’s opinions, and that such opinions receive great weight only if they
are supported by sufficient clinical findings and are consistent with the evidence.” Bogle v. Sullivan,
998 F.2d 342, 347-48 (6th Cir. 1993). The appropriate question is whether the treating physician’s
opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in [the] case record;” if it is well-supported, then
it will be given controlling weight. Rogers, supra, 486 F.3d at 242 (citation omitted). If the treating
physician’s opinion is not controlling, “the ALJ, in determining how much weight is appropriate,
must consider a host of factors, including the length, frequency, nature, and extent of the treatment
relationship; the supportability and consistency of the physician’s conclusions; the specialization of
the physician; and any other relevant factors.” Id. There is an additional requirement associated with
the treating physician rule: “the ALJ must provide ‘good reasons’ for discounting treating
physicians’ opinions,” and the reasons must be “sufficiently specific.” Id.It is important to keep in mind in this context that opinions on some issues, such as whether
the claimant is disabled and her residual functional capacity, “are not medical opinions . . . but are,
instead, opinions on issues reserved to the Commissioner because they are administrative findings
that are dispositive of a case, i.e., that would direct the determination or decision of disability.” 20
C.F.R. § 416.927(e); accord Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir.
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2004) (“The determination of disability is ultimately the prerogative of the Commissioner, not the
treating physician.”) (citation and brackets omitted). Thus, statements from medical sources about
what a claimant can still do are relevant evidence, but they are not determinative inasmuch as the
ALJ has the ultimate responsibility of determining disability and residual functional capacity.
The ALJ acknowledged Dr. Hayag’s evaluation, after which she went on to discuss the report
and assessment performed by Dr. Kenneth Starkey, who had evaluated Deaton at the request of the
Commissioner. Dr. Starkey concluded, among other things, that Deaton had limited, but satisfactory,
abilities in certain areas not assessed by Dr. Hayag (e.g., her ability to follow work rules and relate
to co-workers), and she was found seriously limited, but not precluded, in other areas not assessed
by Dr. Hayag (e.g., her ability to understand, remember, and carry out detailed instructions). After
reviewing the two reports, inter alia, the ALJ stated:
The claimant’s allegation of symptoms related to her mental
impairments are extreme and appear implausible when compared to
the actual treatment record. . . . I accept Dr. Starkey’s assessment of
the claimant’s intellectual functioning, as it is more consistent with
the claimant’s adaptive functioning. The claimant reported that she
cared for her severely disabled mother until she was unable to do so
because of physical impairments. The claimant has a long history of
living independently and is able to care for her own needs. Therefore,
the claimant has demonstrated the ability to function, notwithstanding
her reported IQ scores.[1] I do not give Dr. Hayag’s opinions
controlling weight because they are not supported by the objective
record.
1
According to Dr. Starkey’s assessment, Deaton produced a verbal IQ of 74, a performance
IQ of 72, and a full scale IQ of 70, which put her in the 4th, 3rd and 2nd percentiles respectively, and
at the lower range of borderline intellectual functioning (when adaptive functioning is considered).
It was expected that future testing would yield a full scale IQ falling within a range of 67 to 74.
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The ALJ specified why she did not give Dr. Hayag’s opinion controlling weight --- because
she found that it was not consistent with the objective evidence in the record. For example, despite
Deaton’s claims of significant deficits in daily functioning due to her mental disorders, the record
clearly showed that Deaton cared for herself (and, previously, for her mother) and that she had the
capacity to function in the public domain, such as in doctors’ offices and in grocery stores. More
specifically, Dr. Starkey reported --- and Deaton’s own testimony confirmed --- that Deaton could
complete activities of daily living, such as feeding, bathing, dressing, grooming, driving, toileting
and transferring. She could also use small amounts of money, shop for small items, use a telephone,
prepare simple meals, and manage medication. With respect to social functioning, the record also
showed that Deaton possessed the capacity to interact appropriately and communicate effectively
with others. It was noted that she communicated without difficulty and did not exhibit any antisocial
behavior during the examinations or hearing. Further, her concentration skills allowed for the
completion of assigned tasks as evidenced, among other things, by her understanding the hearing
proceedings and all lines of questioning put to her.
The ALJ assessed the evidence and found that Dr. Starkey’s opinion was consistent, while
Dr. Hayag’s opinion was inconsistent, with the record as a whole. “Generally, the more consistent
an opinion is with the record as a whole, the more weight [the ALJ] will give to that opinion.” 20
C.F.R. § 416.927(d)(4). The ALJ applied the proper legal standard and her determination on this
point is supported by substantial evidence.
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No. 08-5249
Deaton v. Commissioner of Social Security
Deaton next argues that the testimony of VE Miller was deficient inasmuch as the ALJ erred
in failing to specifically advise Dr. Miller of Deaton’s reading deficit.2 She contends that the denial
of benefits thus “rests on sedentary assembly and inspecting jobs which require a reading ability well
beyond that of the claimant.” But, for each hypothetical that the ALJ posed, she asked Dr. Miller to
assume an individual with Deaton’s educational background, which necessarily included her limited
formal education and reduced reading level. Further, Deaton has cited nothing to support the claim
that the sedentary jobs for which she was found to be qualified require a reading or mental ability
beyond what she possesses. The examples given by VE Miller include jobs that would not appear
to require reading beyond which she is capable, such as hand assembler, small products inspector,
hand packer, and bench worker. 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(i), explains that:
While illiteracy or the inability to communicate in English may
significantly limit an individual’s vocational scope, the primary work
functions in the bulk of unskilled work relate to working with things
(rather than with data or people) and in these work functions at the
unskilled level, literacy or ability to communicate in English has the
least significance. . . . Thus, the functional capability for a full range
of sedentary work represents sufficient numbers of jobs to indicate
substantial vocational scope for those individuals age 18-44 even if
they are illiterate or unable to communicate in English.
2
Deaton also argues that the ALJ improperly relied on the vocational testimony “because she
did not ask the VE to consider all of the restrictions which she ultimately adopted.” This argument
is rejected because, after review of the full testimony, we are satisfied that the five hypotheticals put
to the VE accurately reflected Deaton’s abilities and limitations.
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No. 08-5249
Deaton v. Commissioner of Social Security
Deaton’s fourth and final argument is based on the following syllogism: because she turned
45 years of age within 23 days of the ALJ’s decision, and because she is “functionally illiterate,” the
ALJ should have applied Rule 201.00(h)(1), which provides:
[A] finding of “disabled” is warranted for individuals age 45-49 who:
(i) Are restricted to sedentary work, (ii) Are unskilled or have no
transferable skills, (iii) Have no past relevant work or can no longer
perform past relevant work, and (iv) Are unable to communicate in
English, or are able to speak and understand English but are unable
to read or write in English.
20 C.F.R. pt. 404 subpt. P, app. 2 § 201.00(h)(1). We do not agree. Deaton was 44 years old at the
time of the ALJ’s decision; not 45. Although the regulations provide that age categories should not
be applied “mechanically” in all cases, see 20 C.F.R. § 416.963(b), at the same time, this court has
explained that the regulation “obviously does not mean that a claimant must move mechanically to
the next age category whenever his chronological age is close to that category.” Crady v. Secretary
of Health and Human Servs., 835 F.2d 617, 622 (6th Cir. 1987). Rather, a court may disregard an age
category in a “borderline situation,” that is, if the claimant is “‘within a few days to a few months
of reaching an older age category, and using the older age category would result in a determination
or decision that [the claimant is] disabled.’” See Bowie v. Commissioner of Social Security, 539 F.3d
395, 397 (6th Cir. 2008) (quoting 20 C.F.R. § 404.1563(b)) (emphasis added). Although Deaton was
within a few days of reaching 45, the application of that older age category would not result in a
finding of disability, and, therefore, this is not really a borderline situation. This is because the record
does not support a conclusion that she is illiterate.
The applicable regulations provide:
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Illiteracy means the inability to read or write. We consider someone
illiterate if the person cannot read or write a simple message such as
instructions or inventory lists even though the person can sign his or
her name. Generally, an illiterate person has had little or no formal
schooling.
20 C.F.R. § 416.964(b)(1). Deaton attended school through the eighth grade, which constitutes a
“limited education” under the regulations, see 20 C.F.R. § 416.964(b)(3) (“We generally consider
that a 7th grade through the 11th grade level of formal education is a limited education.”); she was not
in special classes while in school; she did not have to repeat any grades; and she has indicated that
she can read and write (albeit at a third grade level). Even if we assume that she has a “marginal
education,” she should still be able to perform the sedentary jobs identified by the VE. See 20 C.F.R.
§ 416.964(b)(2) (“Marginal education means ability in reasoning, arithmetic, and language skills
which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling
at a 6th grade level or less is a marginal education.”); see also Johnson v. Commissioner of Social
Security, 97 Fed. Appx. 539, 541 (6th Cir. 2004) (unpublished) (claimant was not illiterate because,
even though he testified that he could not read or write, he went to school to the sixth grade, he could
purchase items, and he could make proper change; consequently, “substantial evidence supports the
administrative law judge’s conclusion that Johnson has a marginal education and is not illiterate”).
Citing Skinner v. Secretary of Health and Human Servs., 902 F.2d 447 (6th Cir. 1990), Deaton
argues that this court has recognized that a third-grade reading level provides evidence to support
a finding of “functional illiteracy.” However, Skinner differs in a number of significant respects. The
claimant in that case testified at the administrative hearing that he only completed the third grade (in
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a one-room schoolhouse in rural Mississippi); he was unable to read a newspaper; and the evidence
showed that he read “below the third grade level.” See id. at 448-99 (emphasis added). Despite this
“unambiguous” and “undisputed” evidence, the ALJ determined that he had a marginal education.
In reversing, this court stated that there was “overwhelming evidence” in the record that Skinner was,
in fact, illiterate. See id. at 450 (“The record is replete with evidence that Mr. Skinner is illiterate”
because his test results “indicate that he reads below the third grade level”) (emphasis added). Here,
by contrast, it appears to be undisputed that Deaton completed the eighth grade and at the very least
reads at (not below) a third grade level. Unlike the claimant in Skinner, there is no evidence here that
Deaton “cannot read or write a simple message such as instructions or inventory lists.” 20 C.F.R. §
416.964(b)(1). To the contrary, she herself stated several times in her application materials that she
can read and write. See, e.g., Tr. 88, 98, 106. Skinner is not controlling here.
Accordingly, the district court’s order is AFFIRMED.
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