Ferguson v. Comm'r of Soc. Sec.

• Decision Date: 23 December 2010
• Docket Number: No. 09-4387,09-4387
• Citation: 628 F.3d 269,162 Soc.Sec.Rep.Serv. 21
• Parties: Cathy D. FERGUSON, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

628 F.3d 269

162 Soc.Sec.Rep.Serv. 21

Cathy D. FERGUSON, Plaintiff-Appellant,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 09-4387.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 9, 2010.

Decided and Filed: Dec. 23, 2010.

ARGUED: W. David Koeninger, Advocates for Basic Legal Equality, Inc., Toledo, Ohio, for Appellant. Alfred C. Sanchez, Social Security Administration, Chicago, Illinois, for Appellee. ON BRIEF: W. David Koeninger, Advocates for Basic Legal Equality, Inc., Toledo, Ohio, for Appellant. Alfred C. Sanchez, Social Security Administration, Chicago, Illinois, for Appellee.

Before: MOORE, SUTTON, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

This is an appeal from an order of the district court affirming the decision of the Commissioner of Social Security denying appellant Cathy Ferguson's applications for disability insurance benefits and supplemental security income. Ferguson identifies two procedural errors which are said to require remand to the Commissioner for further consideration of a fully developed record. For the reasons that follow, we affirm the district court's judgment.

I. BACKGROUND

Claimant Cathy D. Ferguson was born in 1952. She has a high school education. From 1988 to 2001, she worked in various capacities—as a materials handler, an assisted living center aid, and a maintenance worker. She has not worked since February 18, 2001, when she alleges she became unable to work due to "anxiety, paranoia, stress, nerves, voices, depression." The extensive medical records show a history of degenerative disc disease, back pain and arthritis, conditions which result in some physical limitations. However, Ferguson's disability claim is based primarily on her mental impairments. There is no question about the existence of mental impairments; the challenge for Ferguson has been in adducing objective medical findings that demonstrate the impairments are so severe as to render her "disabled."

Her applications for disability insurance benefits and supplemental security income were filed on August 13, 2001. A hearing was conducted by Administrative Law Judge William L. Hafer in Lima, Ohio on June 8, 2004. In a 17-page opinion issued on May 25, 2005, the ALJ denied the claims. The ALJ found that Ferguson's physical impairments were not severe, but her mental impairments, identified as residual type schizophrenia and panic disorder, were severe. Still, the ALJ determined that she retained the residual functional capacity to perform unskilled work in settings requiring no more than superficial contact with others without rigid deadlines and high production standards. That is, the ALJ concluded that she remained able to perform her past relevant work as a cleaner and materials handler.

On review, the Appeals Council vacated the ALJ's decision and remanded for a more thorough evaluation of claimant's credibility, complaints of pain, and ability to perform work-related activities. On remand, ALJ Hafer conducted a second hearing, on November 28, 2005 before issuing his second decision on July 25, 2006, again denying Ferguson's claims. The second decision is lengthy and thorough. Again, the ALJ determined that Ferguson had the following impairments: (1) degenerative disc disease and osteoarthritis of the cervical spine; (2) degenerative disc disease and osteoarthritis of the lumbar spine; (3) hypertension; (4) schizophrenia, residual-type; and (5) panic disorder. The ALJ found these impairments to be "severe," but concluded they did not, alone or in combination, meet the severity requirements for a disability finding. The ALJ reiterated his earlier finding that Ferguson retained the residual functional capacity to perform her past relevant work. Ferguson's request for review by the Appeals Council was denied on April 16, 2008 and the second ALJ decision was upheld. The Appeals Council considered additional medical evidence submitted by Ferguson, but found that it was cumulative and did not alter the outcome.

Ferguson sought judicial review pursuant to 42 U.S.C. § 405(g). The action was commenced in the Northern District of Ohio, where the parties consented to have Magistrate Judge Vernelis K. Armstrong conduct all proceedings in the case and render final judgment, pursuant to 28 U.S.C. § 636(c). On September 30, 2009, the court affirmed the final decision of the Appeals Council approving the ALJ's decision. The district court rejected each of three claims of error asserted by Ferguson, holding: (1) that the ALJ did not improperly ignore a treating physician's opinion, in violation of Social Security Ruling ("SSR") 96-5p; (2) that the ALJ did not err in questioning Ferguson's credibility insofar as the complained of severity and frequency of her symptoms were not supported by the objective medical evidence; and (3) that the ALJ's conclusion that Ferguson had not demonstrated the required level of severity of impairments to meet the definition of "disability" is supported by substantial evidence.

On appeal, Ferguson insists that the ALJ violated SSR 96-5p by discounting a treating physician's opinion without first contacting the physician for clarification and contends the district court erred by declining to remand the matter to the ALJ for reconsideration in light of new evidence never considered by the ALJ.

II. ANALYSIS

A. SSR 96-5p Recontact Requirement

The gravamen of Ferguson's first claim is that the ALJ improperly rejected the opinion of one of her treating physicians. The record indicates that Ferguson received treatment from a psychiatrist, Dr. Ruth Erulkar, M.D., from March 2003 until November 2005. The record of Dr. Erulkar's treatment is limited to handwritten office notes, reflecting Ferguson's reported history and subjective complaints, as well as medications prescribed. Among these notes is one statement of opinion by Dr. Erulkar: "[Patient] will not be able to work due to her agoraphobia and panic attacks. Paranoia present." A.R. 428, Note 11/16/05. This note was entered just twelve days before the second hearing conducted by the ALJ and was addressed in his decision as follows:

On November 16, 2005, Dr. Erulkar stated, "Patient will not be able to work due to her agoraphobia and panic attacks. Paranoia present." (Exhibit 25F, page 2). I reject Dr. Erulkar'sopinion, which is not supported by Dr. Erulkar's own objective findings. Dr. Erulkar's notes are handwritten and only partially legible. Generally, they consist of phrases, not complete sentences. It is often difficult to discern when Dr. Erulkar is merely recording the history and complaints offered to her by the claimant and when she is noting objective mental status abnormalities that she has observed. However, they appear to contain mostly the claimant's history and complaints. In any event, viewing the record as a whole, including the paucity of objective abnormalities recorded by the examiners who have evaluated the claimant, along with the claimant's daily activities, social functioning, and general tendency to exaggerate her symptoms, I reject Dr. Erulkar's opinion of disability.

A.R. 69, Decision p. 51.

Ferguson construes the ALJ's treatment of Dr. Erulkar's notes as reflecting the ALJ's failure to understand the bases for her opinion that Ferguson was unable to work. In such a circumstance, Ferguson contends, where the bases for a treating source's opinion are not clear, the ALJ was obliged, pursuant to Social Security Ruling 96-5p, to make every reasonable effort to recontact the source for clarification. Instead, she argues, the ALJ "chose to throw up his hands and disregard the notes entirely." The district court did not specifically address Ferguson's charge that the ALJ had a duty to recontact Dr. Erulkar. Rather, the court held the ALJ complied with SSR 96-5p by basing his assessment of Ferguson's residual functional capacity upon the record as a whole after conducting an extensive examination of numerous opinions, including that of Dr. Erulkar.

On appeal, the district court's ruling on Ferguson's claim that the ALJ failed to apply the correct legal standard is reviewed de novo. Valley v. Comm'r of Soc. Sec., 427 F.3d 388, 390 (6th Cir.2005).

Social Security Ruling 96-5p purports to "clarify Social Security Administration policy on how we consider medical source opinions on issues reserved to the Commissioner, including ... whether an individual is 'disabled' under the Social Security Act." Soc. Sec. Rul. 96-5p, 1996 WL 374183 at *1 (July 2, 1996).¹ For purposes of SSR 96-5p, "medical opinions" are defined as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s)." Id., 1996 WL 374183 at *2. The provision at issue recognizes that even though some issues, such as whether an individual is "disabled," are case-dispositive administrative issues reserved to the Commissioner,

adjudicators must always carefully consider medical source opinions about any issue, including opinions about issues that are reserved to the Commissioner. For treating sources, the rules also require that we make every reasonable effort to recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us.

Id. The Ruling goes on to identify two conditions that must both be met to trigger the duty to recontact: "the evidence does not support a treating source's opinion ... and the adjudicator cannot ascertain the basis of the opinion from the record." Id. at *6 (emphasis added).² While the former of these requirements is met in this case, the latter is not.

First, however, we reject Ferguson's characterization of the ALJ's error. While the ALJ said he "rejected" Dr. Erulkar's "opinion of disability," the language and analysis of his thorough decision clearly refutes the charge that he "threw up his hands" and ignored or...