Ealy v. Colvin

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS denying 9 Motion for Summary Judgment filed by Katherine Ealy; overruling plaintiff's objections to report and recommendations; adopting 15 Report and Recommendations, granting 12 Motion to Affirm filed by Carolyn W. Colvin. A separate judgment shall enter. Signed by District Judge Tom S. Lee on 8/12/14 (LWE) Modified on 8/12/2014 (LWE).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
KATHERINE EALY
VS.

PLAINTIFF
CIVIL ACTION NO. 3:13CV409TSL-JCG

CAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY

DEFENDANT

ORDER
This cause is before the court on the objections of plaintiff
Katherine Ealy to the report and recommendation of United States
Magistrate Judge John M. Roper entered on June 30, 2014,
recommending that the plaintiff’s motion for summary judgment be
denied and the government’s motion to affirm the decision of the
Commissioner be granted.

Based on the following, the court,

having fully reviewed the report and recommendation and being duly
advised in the premise, now finds that the report and
recommendation should be adopted over the objections of the
plaintiff as the opinion of the court.
Plaintiff makes three primary objections to the report and
recommendation: (1) the ALJ, in arriving at plaintiff’s residual
functional capacity (RFC), failed to incorporate the moderate
limitation of plaintiff’s concentration, persistence and/or pace,
which he had previously found, such that the hypothetical posed to
the vocational expert (VE) was incomplete and the opinions of the

VE in response thereto do not amount to substantial evidence
supporting the conclusion that plaintiff is not disabled; (2) the
ALJ failed to resolve a conflict between the VE’s testimony and
the Dictionary of Occupational Titles (DOT); and (3) the ALJ
failed to give adequate justification for disregarding the opinion
of a nurse practitioner regarding plaintiff’s mental ailments.
Regarding the first and third alleged errors, the magistrate
judge concluded that the ALJ’s hypothetical “fairly and
reasonably” incorporated plaintiff’s moderate limitation in
concentration, persistence and/or pace into the RFC and into the
hypothetical posed to the VE and that the ALJ was justified in
discounting the opinions of the nurse practitioners because they
conflicted with the “objective medical evidence” as determined by
the physician who undertook a consultative examination of
plaintiff.

The magistrate judge did not purport to address in any

detail plaintiff’s contention regarding the alleged conflict
between the DOT and the VE’s testimony, but instead, concluded
that because two of the jobs identified by the VE at Stage 5 were
unskilled work requiring only simple instructions, as defined by
SSR 96-9p, plaintiff had not been harmed.
At step two in the five-step sequential process, the ALJ
found that plaintiff had the following “severe” impairments:
“status post fracture to the right tibia and ankle, status post
2

fracture to the hips, possible osteoarthritis affecting the hip,
obesity, a depressive disorder and an anxiety disorder.”

Later in

his analysis, the ALJ further observed the effects of the
depressive and/or anxiety disorders, stating “the claimant
exhibits only a mild restriction in the ability to perform the
activities of daily living, no more than moderate restriction in
her ability to maintain social functioning, no more than moderate
ability to maintain concentration, and no episodes of
decompensation lasting for an extended period.”

This assessment

was based on plaintiff’s testimony that
she can prepare a microwave dinner for herself, vacuum,
and grocery shops once a month. She testified that she
can see to personal grooming tasks (showering and
dressing). The claimant related to Dr. Tatum that she
can do many household chores, including sweeping,
mopping, vacuuming, cooking, doing the dishes and
shopping (1F). In the Function Report (at Exhibit 3E)
the claimant related that she gets her two sons up each
morning and off to school. She related that she cooks
complete meals three days a week, runs errands, pays her
bills, grocery shops, watches TV, reads, listens to
music, and attends church services. The claimant also
testified that she enjoys working crossword puzzles.
The ALJ thereafter determined that plaintiff retained1 the RFC “to
perform light level work activity except with no climbing of
ladders, ropes or scaffolds, occasional climbing of ramps or
1

The magistrate judge concluded that while the ALJ
erroneously found that the plaintiff could return to her past
work, this error was harmless in light of the alternative step-5
findings.
3

stairs, and she is limited to the performance of simple, routine
and repetitive tasks with only occasional interaction with the
public, co-workers or supervisors.”

At plaintiff’s hearing, the

ALJ’s hypothetical to the VE mirrored this RFC.
By her objection, plaintiff maintains that this RFC and the
hypothetical posed to the VE based on this RFC does not adequately
incorporate the ALJ’s finding of moderate limitation in
concentration, persistence and/or pace.

More specifically, as the

court understands it, plaintiff’s position is that because the ALJ
had previously concluded that plaintiff had a moderate limitation
in persistence, pace and/or concentration and could have, but did
not, purport to specify in his hypothetical to the VE that this
limitation was applicable to tasks of greater complexity than
“simple,” the ALJ’s hypothetical failed to account for this
limitation in the performance of even simple tasks.

From this,

plaintiff reasons that the mental RFC and resulting hypothetical
are incomplete and consequently, the ALJ’s Step 5 finding is not
supported by substantial evidence.
disagreed.

The magistrate judge

Citing Bordelon v. Astrue, 281 Fed. Appx. 418 (5th Cir.

2008) for the proposition that every single limitation, such as
difficulty in concentration, pace and/or persistence, need not be
4

explicitly named in the hypothetical, but rather need only be
reasonably incorporated, he concluded that the ALJ’s hypothetical
limiting plaintiff to “simple, routine, and repetitive tasks with
occasional interaction with the public, with coworkers, and with
supervisors,” reasonably reflected the difficulties that plaintiff
endured.

The court finds that the magistrate judge’s conclusion

is consistent with the Fifth Circuit’s reasoning in Bordelon and
thus, does not warrant reversal or remand.

See Bordelon,, 281 F.

App'x at 423 (finding restriction to rare public interaction, low
stress and one-to-two step instructions reflects that ALJ has
reasonably incorporated plaintiff's moderate concentration,
persistence and pace limitations); see also Howard v. Massanari,
255 F.3d 577, 582 (8th Cir. 2001) (“Based on this record, the
ALJ's hypothetical concerning someone who is capable of doing
simple, repetitive tasks adequately captures [claimant's]
deficiencies in concentration, persistence or pace.”).

But see

Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1180
(11th Cir. 2011) (rejecting proposition that “an ALJ generally
accounts for a claimant’s limitation in concentration,
persistence, and pace by restricting the hypothetical question to
simple, routine task or unskilled work”); and Ramirez v. Barnhart,
372 F.3d 546, 554 (3d Cir. 2004) (concluding that claimant's

5

impairment in concentration, persistence or pace was not
accommodated by limitation to simple tasks in the hypothetical to
the vocational expert because it did not account for deficiencies
in pace).
Plaintiff additionally argues that the ALJ failed to resolve
a conflict between the DOT and the VE’s testimony.

In his

decision, the ALJ, relying on the VE’s testimony found that given
her RFC, plaintiff could return to her past work or,
alternatively, that she could perform three jobs that exist in
significant numbers in the national economy: (1) laundry worker,
light with specific vocation preparation (SVP)2 of 2; (2) marker,
light with SVP of 2; and (3) clock watch assembler, light with SVP
of 2.3

While plaintiff acknowledges that two of the three jobs

identified by the VE had a SVP of 2, she nonetheless complains
that the ALJ failed to resolve a conflict between VE’s testimony

2

According to the DOT, “SVP, or Specific Vocational
Preparation, refers to the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information,
and develop the facility needed for average performance in a
particular occupation.” Dictionary of Occupational Titles
(“DOT”), App. C (rev. 4th ed. 1991).

3

Plaintiff argued below (and the magistrate judge agreed)
that the ALJ was in error regarding the SVP of the position of
clock watch assembler. Per the DOT, it has a SVP of 7, not 2 as
found by the ALJ.
6

and the DOT as to the Reasoning Level4 requirements for these
positions and her former position as a poultry dressing worker.
Specifically, she points out that while the DOT assigns “poultry
dressing worker” a Reasoning Level of 1, it assigns a Reasoning
Level of 2 to the positions of “laundry worker” and “marker.”
Plaintiff maintains that the positions identified by the VE
require reasoning development in excess of that allowed by the
ALJ’s limitation to simple, routine and repetitive tasks.
Plaintiff further reasons that, in light of the conflict between
the VE’s testimony and the DOT together with the lack of an
explanation by the ALJ as to why he credited the opinion of the VE
over the DOT, the Secretary failed to sustain his burden at Step
5.

While the magistrate judge did not specifically address this

4

The DOT also identifies the General Educational
Development (GED) component of a job definition, which “embraces
those aspects of education (formal and informal) which are
required of the worker for satisfactory job performance.” Id.
The GED scale is composed of three divisions: Reasoning
Development, Mathematical Development, and Language Development.
The Reasoning Development Scale ranges from Level 1, which
reflects the simplest type of reasoning, to Level 6, the most
complex. In performing a job which implicated Level 1 reasoning,
a worker would “[a]pply commonsense understanding to carry out
simple one-or two-step instructions. Deal with standardized
situations with occasional or no variables in or from these
situations encountered on the job.” Id. In a Level 2 position
the worker would be required to “[a]pply commonsense understanding
to carry out detailed but uninvolved written or oral instructions.
Deal with problems involving a few concrete variables in or from
standardized situations.” Id.
7

argument in the report and recommendation, the court now concludes
that it does not warrant relief.
The court initially observes that plaintiff’s failure to
raise the issue of the alleged conflict at the administrative
hearing deprived the ALJ from addressing and exploring it.
Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000).

See

Further,

even had defendant not waived this argument, the court concludes
that plaintiff has failed to establish an actual conflict.

See

Smith v. Colvin, No. 313–cv–1884–N–BN, 2014 WL 1407437 (N.D. Tex.
March 24, 2014) (“A number of district courts within the Fifth
Circuit, as well as appellate and district courts outside the
Fifth Circuit, have already determined that there is no direct or
apparent conflict between an RFC limiting a plaintiff to ‘simple’
instructions and a VE's testimony that a plaintiff may perform
work at a reasoning level of two.

The weight of the authority

supports a determination that a limitation to ‘simple, repetitive,
and routine tasks’ could support work with a reasoning level of
two or three.”) (citing Coleman v. Colvin, No. 3:12–cv–1145–BN,
2013 WL 5353416, at *4 (N.D. Tex. Sept.25, 2013); Johnson v.
Astrue, No. 11–3030, 2012 WL 5472418, at *11 (E.D. La. Oct. 5,
2012) (collecting cases and determining that Plaintiff, limited to
8

“simple, repetitive and routine tasks” could perform work with a
reasoning level of three); Melton v. Astrue, No. 2:11–cv–157–SAA,
2012 WL 1004786, at *2–*3 (N.D. Miss. Mar. 26, 2012) (no conflict
in VE testimony that plaintiff, who was limited to “simple,
routine, repetitive tasks involving simple work related
decisions,” could perform work with a reasoning level of two);
Fletcher v. Astrue, No. 5:09–cv–70–BG, 2010 WL 1644877, at *4
(N.D. Tex. Mar.31, 2010) (“Courts have acknowledged that the
ability to perform non-complex work is consistent with reasoning
level two”); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th
Cir.2005) (noting that level two reasoning appears consistent with
a limitation to simple, routine, repetitive work)).

Accordingly,

this alleged ground of error provides no basis for reversal or
remand.
Finally, plaintiff’s third objection is that the ALJ failed
to give due consideration to the medical opinion evidence pursuant
to SSR 06-3p.

More specifically, plaintiff complains that the ALJ

did not adequately justify his decision to disregard the opinion
of E. Flake, a nurse at Weems who saw plaintiff on 16 occasions
and who provided an assessment indicating that plaintiff was
experiencing serious psychological limitations.
9

The magistrate

judge determined that “it was not within the Court’s standard of
review to second-guess or re-priortize the deference given by the
ALJ to various sources.”

While plaintiff gives assent to this

proposition, she submits that this court’s consideration of
whether the RFC is supported by substantial evidence, necessarily
entails consideration of whether the ALJ, in accordance with SSR06-3p, properly accounted for the opinion of plaintiff’s longstanding mental health provider.

The court finds that the ALJ did

not run afoul of his obligation under SSR-06-3p.
SSR-06-03p sets forth the Commissioner’s obligations with
regard to evaluating “other sources,” such as nurses or nurse
practitioners.

While the ruling recognizes that “it may be

appropriate to give more weight to the opinion of a medical source
who is not an acceptable medical source....” SSR 06–3p, 2006 WL
2329939, *5, ultimately SSR 06–3p requires only that the ALJ
“explain the weight given to opinions from these ‘other sources,’
or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer
to follow the adjudicator's reasoning....” Id. at *6.

The ALJ’s

explanation of his decision to discount Flake’s opinion, which
follows, is more than adequate:
10

As noted, the claimant also complains of anxiety and
depression. She has made these complaints to nurse
Flake, who sees her at Weems Community Mental Health
Center, and nurse Flake has, as noted above, provided an
assessment (by way of completing a questionnaire)
indicating that the claimant is experiencing serious
psychological related limitations. However, this
assessment from a nurse cannot be given significant
weight because it is not consistent with other important
evidence in the case—specifically the aforementioned
treatment notes from the Morton Family Center from
January and February 2012 (Exhibit 12F). These notes
indicate that the claimant is not experiencing or even
complaining of serious psychological problems. Notes
dated January 25, 2012 indicate that the claimant, while
saying that she was experiencing some anxiety, denied
any difficulty with depression. She also denied any
problems regarding confusion or memory deficits. These
notes indicate that on mental status exam the claimant’s
memory was normal. The assessment was depression,
controlled. In the treatment notes dated February 17,
2012[,] the claimant denied any difficulty sleeping,
said that she was not having mood swings, was not
feeling depressed or anxious, and was not experiencing
any memory loss (Id). Notes dated February 28, 2012
indicate that the claimant was not feeling anxious or
depressed and was not experiencing memory loss. Once
more, findings of mental status exam were normal,
including a listing that memory function was normal.
The Judge is struck by the contradiction of what the
claimant reported to this medical source as opposed to
what she reported to nurse Flake. Even more difficult
to reconcile is the claimant’s testimony that she is
experiencing severe memory deficits wherein she cannot
remember where she places her keys or purse with such
deficits occurring, per claimant’s testimony, “all day
long.” . . . . Again, the evidence show that the
claimant is exaggerating the effect her psychological
impairments have on her ability to function. Because
the evidence from the Morton Family Medical Center as
well as claimant’s own prior statements show that she
exaggerates her psychological related difficulties, the
assessment from nurse Flake, who based her opinion on
the claimant’s exaggerated complaints made to her,
cannot be given significant weight.
11

This objection is without merit.
Based on the foregoing, it is ordered that plaintiff’s
objections to the report and recommendation are overruled.

It is

further ordered that the report and recommendation of United
States Magistrate Judge John M. Roper be, and the same is hereby,
adopted as the finding of the court.

It follows then that

plaintiff’s motion for summary judgment is denied and defendant’s
motion to affirm is granted, such that the action will be
dismissed with prejudice.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 12th day of August, 2014.

/s/ Tom S. Lee_____________
UNITED STATES DISTRICT JUDGE

12