Ileri v . SSA CV-03-107-JD 12/01/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Salih Bora Ileri
v. Civil N o . 03-107-JD
Opinion N o . 2003 DNH 205
Jo Anne B . Barnhart, Commissioner
O R D E R
The plaintiff, Salih Bora Ileri, seeks judicial review,
pursuant to 28 U.S.C. § 405(g), of the decision of the
Commissioner denying his application for social security
benefits. Ileri contends that the Administrative Law Judge
(“ALJ”) failed to give controlling weight to the opinions of his
treating psychiatrist, erroneously substituted his own opinions
for those in the record, improperly considered a medical report
while ignoring its spirit, and improperly relied on Ileri’s daily
activities. Ileri also asks that his case be remanded for
further administrative proceedings to consider new medical
evidence. The Commissioner moves to affirm the decision.
Background
Salih Bora Ileri applied for benefits under Titles II and
XVI of the Social Security Act, alleging an inability to work due
to disability since October 2 5 , 1999. Ileri has a Master of
Business Administration degree, and he has worked as a plant
supervisor, a foreman, an engineer, an assembler supervisor, a
night auditor, a production planner, an inventory supervisor, a
hotel clerk, and a driver. He will remain insured through at
least December 3 1 , 2003.
Ileri consulted with D r . David J. Schopick, a psychiatrist,
on November 2 3 , 1998, due to a concern that he had developed
attention deficit hyperactivity disorder (“ADHD”). He complained
of poor concentration and reading comprehension. D r . Schopick
heard Ileri’s description of his symptoms, his past history, and
his living circumstances, including a painful divorce and the
loss of his job resulting in a decline in living status. D r .
Schopick noted that Ileri’s mood was a little depressed with a
sad affect but that he was able to laugh genuinely and that his
judgment and insight appeared to be good. D r . Schopick diagnosed
ADHD and major depression with atypical features. He also
concluded that Ileri was functioning at a Global Assessment of
Functioning (“GAF”) level of 7 5 , which indicates only slight
impairment.
Dr. Schopick prescribed a regimen of psycotherapeutic
medications beginning in December of 1998. D r . Schopick’s
treatment notes during 1999 indicate that Ileri was doing well,
that work was going well, and then, even after being laid off, he
continued to do well. On March 1 4 , 2001, D r . Schopick wrote that
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Ileri was discouraged because his driver’s license had been
suspended for not paying child support.
On the same day, March 1 4 , D r . Schopick completed a report
for New Hampshire Disability Determination Services (“DDS”) in
which he noted that Ileri was continuing to experience major
depression and that ADHD limited his ability to perform
activities of daily living, to socialize, and to react
appropriately to stress. At the same time, D r . Schopick reported
that Ileri had a normal rate of speech, normal thought content,
and normal functioning in orientation, memory, learning,
attention, and concentration. In a mental impairment
questionnaire, also completed on March 1 4 , 2001, however, D r .
Schopick indicated that Ileri was experiencing poor memory, sleep
and mood disturbance, emotional lability, social withdrawal, a
flat affect, decreased energy, anhedonia, psychomotor agitation,
feelings of guilt and worthlessness, difficulty concentrating,
and persistent general anxiety. He found marked restrictions in
Ileri’s activities of daily living and social functioning;
frequent deficiencies in concentration, persistence, and pace;
and repeated episodes of deterioration or decompensation in a
work setting.
Dr. Schopick’s treatment notes in April, May, and June of
2001 report continuing symptoms of ADHD and depression. In July,
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Ileri reported that he was not sitting around crying. Dr.
Schopick described Ileri as sad but strong and communicative.
In July of 2001, Ileri was also examined by Steven B .
Spielman, Ph.D., a clinical neuropsychologist. Ileri described
his typical activities as including housework tasks, grocery
shopping, socializing with friends, and going to a local café.
He denied any current problems or complaints and reported that
his sleep had improved and that his appetite was good. Dr.
Spielman found intact orientation, acceptable attention, and
normal processing speed. D r . Spielman diagnosed a major
depressive disorder that was well controlled through medication.
In his opinion, Ileri was capable of completing short tasks, to
follow a schedule, and to interact with others appropriately. He
thought Ileri would benefit from vocational rehabilitation.
Michael A . Schneider, Psy.D., a psychologist and medical
consultant for DDS, reviewed Ileri’s medical record for purposes
of his application for benefits. D r . Schneider indicated that
Ileri’s mental state had more than a minimal effect on his
ability to perform basic work related functions, but that he did
not suffer from any limitations which would meet or equal a
category in the Social Security Listing of Impairments. He found
that Ileri’s mental capacity was moderately limited as to his
ability to understand, remember, carry out detailed instructions,
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respond to criticism from supervisors, and respond appropriately
to changes in the work setting. In his opinion, Ileri was
capable of performing simple, straight forward work activities.
On September 4 , 2001, D r . Schopick reported that a change of
medications had helped and that Ileri was smiling and laughing
appropriately at that appointment. D r . Schopick wrote in his
October 3 1 , 2001, treatment note that Ileri had been very upset
by the September 11 attack. He also reported that Ileri’s
medications were working, but he changed the medication regimen.
In December of 2001, D r . Schopick noted that the new regimen was
working although Ileri’s mood was down.
Dr. Schopick completed another mental impairment
questionnaire in March of 2002. He reiterated his previous
opinion that Ileri was experiencing marked restrictions in
activities of daily living and social functioning; frequent
deficiencies in concentration, persistence, and pace; and
repeated episodes of deterioration or decompensation. He found
that Ileri was then functioning at a GAF of 5 5 , which indicates
moderate difficulties in social or occupational functioning. He
also found that Ileri’s mental impairment met or equaled § 12.04
of the Listing of Impairments from July of 2000 to March of 2002.
A hearing was held before an ALJ on April 2 , 2002. Ileri,
who was represented by an attorney, appeared and testified at the
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hearing. He described the work experiences he has had and his
daily activities. A vocational expert, Ralph E . Richardson, also
testified. After considering Ileri’s work experience and the
limitations described by the ALJ, that Ileri could do only
routine, repetitive, simple tasks, Richardson concluded that
Ileri could not return to any of his past work. He identified
alternative unskilled work as an assembler, automobile locator, a
cafeteria attendant, or a cleaner that Ileri could d o . When
additional restrictions were added to avoid work that involved
fast-paced production or where the rate of production was
integral to job performance, Richardson said work was available
with those restrictions as a grounds keeper or an office helper.
When he considered the greater limitations found by D r . Schopick,
Richardson found that Ileri would not be able to do any of the
identified jobs.
The ALJ issued his decision on October 3 1 , 2002. The ALJ
decided that D r . Schopick’s opinions were not entitled to
controlling weight because they were contradicted by his own
treatment notes and by the opinions of D r . Spielman and D r .
Schneider. He found that Ileri had severe impairments due to
ADHD and depression but that the impairments did not meet or
equal a listed impairment. He also found that despite the
impairments, Ileri was able to do the work identified by the
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vocational expert. As a result, he concluded that Ileri was not
disabled for purposes of the Social Security Act.
On November 5 , 2002, Ileri requested review of the ALJ’s
decision. The Appeals Council issued its decision on February
1 3 , 2003, denying the request for review. The ALJ’s decision
then became the final determination of the Commissioner.
Discussion
As a preliminary matter, Ileri asks the court to remand his
case for further administrative proceedings to consider new
evidence. Under sentence six of § 405(g), the court “may at any
time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the
record in a prior proceeding.” See also Freeman v . Barnhart, 274
F.3d 606, 610 (1st Cir. 2001).
New evidence is information that was unavailable during the
administrative proceeding and is noncumulative. Evangelista v .
Sec’y of Health & Human Servs., 826 F.2d 136, 139-140 (1st Cir.
1987). Evidence is material if it pertains to the time period
under consideration and if the it might reasonably have changed
the ALJ’s decision. Id.; Kapusta v . Sullivan,
900 F.2d 9 4 , 97
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(7th Cir. 1989). The good cause requirement is not satisfied by
the mere explanation that the evidence did not exist before the
ALJ’s decision, but instead the claimant must explain his failure
to seek the opinion earlier. Lisa v . Sec’y of Dep’t of Health &
Human Servs., 940 F.2d 4 0 , 45 (2d Cir. 1991).
Ileri offers a thirteen-page letter from D r . Jerrold Pollak,
a psychologist, who performed cognitive and neuropsychological
testing of Ileri on September 2 6 , 2002. D r . Pollak found mild
deficits in attention, concentration, some memory functions, and
some verbal skills, while the rest of the tests showed intact
average range functioning. D r . Pollak found that Ileri’s self
reporting of symptoms indicated attention deficit disorder and
moderate to severe symptoms of depression. As part of his
recommendations, D r . Pollak stated that Ileri’s neuropsychiatric
status would preclude competitive employment.
Dr. Pollak’s letter is at least arguably new evidence that
is material to Ileri’s claim.1 Ileri does not explain, however,
why he waited until late September, after the hearing, which was
held in April of 2002, to obtain another opinion as to the extent
and effect of his impairments. In addition, D r . Pollak’s letter
1
Dr. Pollak’s opinion that Ileri’s impairments would
preclude employment is not material, however. See 20 C.F.R. §
404.1527(e).
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states that he reviewed his assessment and recommendations with
Ileri on October 3 1 , 2002. Ileri does not indicate that he
attempted to have D r . Pollak issue a written opinion earlier or
on an expedited basis. Therefore, in the absence of a showing of
good cause for the delay, Ileri has not satisfied the
requirements for a sentence six remand for consideration of new
evidence.
The court must uphold a final decision of the Commissioner
denying benefits unless the decision is based on legal or factual
error. Manso-Pizarro v . Secretary of Health & Human Servs., 76
F.3d 1 5 , 16 (1st Cir. 1996) (citing Sullivan v . Hudson,
490 U.S.
877, 885 (1989)). The Commissioner=s factual findings are
conclusive if based on substantial evidence in the record.
42
U.S.C.A. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v . Perales,
402 U.S. 389, 401 (1971)
(quotation omitted). In making the disability determination,
“[i]t is the responsibility of the [Commissioner] to determine
issues of credibility and to draw inferences from the record
evidence.” Irlanda Ortiz v . Secretary of Health & Human Servs.,
955 F.2d 765, 769 (1st Cir. 1991).
Ileri’s application was denied at step five of the
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sequential evaluation process set forth in 20 C.F.R. § 404.1520.2
At step five, the Commissioner has the burden “of coming forward
with evidence of specific jobs in the national economy that the
applicant can still perform.” Freeman v . Barnhart,
274 F.3d 606,
608 (1st Cir. 2001). Although Ileri presents his argument in the
form of several different theories, in essence, he challenges the
ALJ’s decision not to give controlling weight to the opinion of
Dr. Schopick as to the severity of his impairments and to instead
use other record evidence to support his decision.
The opinions of a treating physician are entitled to
controlling weight as long as they are well supported by
medically acceptable diagnostic techniques and are not
inconsistent with the medical record. See 20 C.F.R. §
404.1527(d)(2). An ALJ is required to give reasons in the
disability determination for the weight ascribed to the treating
source’s opinion. Id.; S.S.R. 96-2P,
1996 WL 374188 * 5 .
Determining a Social Security applicant’s residual functional
capacity (“RFC”), however, is an administrative decision that is
the responsibility of the Commissioner.
20 C.F.R. §
404.1527(e)(2). For that reason, a treating physician’s opinion
2
Ileri seeks benefits under both Title II and Title XVI.
The provisions are parallel and, therefore, for simplicity the
court will refer only to the Title II provisions. See Barnhart
v . Thomas, 124 S . C t . 376, 379 (2003
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as to an applicant’s RFC, whether his impairments meet or equal a
listed impairment, and whether he is disabled is not controlling
on the ALJ in making that determination. SSR 96-5P, 1996 WL
374183, *3 (July 2 , 1996). See also Diaz v . Chater,
55 F.3d 3 0 0 ,
306 n.2 (7th Cir. 1995); West v . Barnhart,
254 F. Supp. 2d 1216,
1221 (D. Kan. 2003; Gagnon v . Barnhart,
210 F. Supp. 2d 1 1 1 , 120-
21 (D. Conn. 2002); Poland v . Halter,
2001 WL 920038, *6 (D.N.H.
Aug. 2 , 2001).
In this case, the ALJ reviewed the medical evidence of
Ileri’s impairments. He explained that he was not giving D r .
Schopick’s opinions as to the severity of Ileri’s impairments
controlling weight because those opinions were contradicted by
Dr. Schopick’s own treatment notes and the opinions of D r .
Spielman and D r . Schneider. Although the ALJ focused more on the
effects of depression, he did also consider Ileri’s impairment
due to ADHD. Therefore, the ALJ appropriately decided not to
give D r . Schopick’s opinions of Ileri’s functional capacity
controlling weight.
Contrary to Ileri’s arguments, the ALJ did not substitute
his own opinions for medical opinions in the record. Instead, he
relied on the opinions of D r . Spielman and D r . Schneider. He
also did not improperly parse D r . Schopick’s opinions. The ALJ
considered Ileri’s testimony about the range of his daily
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activities in evaluating his credibility as to his own assessment
of the effects of his impairments, which is appropriate. See,
e.g., Avery v . Sec’y of Health & Human Servs., 797 F.2d 19 (1st
Cir. 1986).
Ileri does not dispute that the hypothetical described by
the ALJ to the vocational expert matched his RFC as provided in
the opinions of D r . Spielman and D r . Schneider. The vocational
expert’s opinion about jobs that Ileri could d o , despite his
impairments, is substantial evidence that supports the ALJ’s
decision. See Arocho v . Sec’y of Health & Human Servs., 670 F.2d
374 (1st Cir. 1982).
Conclusion
For the foregoing reasons, the plaintiff’s motion to reverse
or remand (document n o . 10) is denied. The Commissioner’s motion
to affirm (document n o . 12) is granted.
The decision of the Commissioner is affirmed. The Clerk of
Court shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
December 1 , 2003
cc: David F. Bander, Esquire
David L . Broderick, Esquire
Rogert D. Turgeon, Esquire
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