Manley v. Commissioner of Social Security
Filing
21
Memorandum Opinion and Order reversing Commissioner's final decision and remanding for proceedings consistent with this opinion. Magistrate Judge Nancy A. Vecchiarelli (C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TONY A. MANLEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
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)
)
)
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CASE NO. 3:13-CV-02100
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Defendant.
Plaintiff, Tony A. Manley (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”), denying his
applications for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This case is before the undersigned United
States Magistrate Judge pursuant to the consent of the parties entered under the authority
of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner’s final
decision is REVERSED and REMANDED for proceedings consistent with this opinion.
I.
PROCEDURAL HISTORY
On November 27, 2009, Plaintiff filed his application for POD and DIB. (Transcript
(“Tr.”) 56.) On December 2, 2009, he filed his application for SSI. (Id.) In both
applications, he alleged a disability onset date of July 1, 2008. (Id.) The claims were
denied initially and upon reconsideration, and Plaintiff requested a hearing before an
administrative law judge (“ALJ”). (Id.) On June 4, 2012, an ALJ held Plaintiff’s hearing.
(Id.) Plaintiff participated in the hearing, was represented by counsel, and testified. (Id.) A
vocational expert (“VE”) also participated and testified. (Id.) On July 27, 2012, the ALJ
found Plaintiff not disabled. (Tr. 53.) On August 2, 2013, the Appeals Council declined to
review the ALJ’s decision, and the ALJ’s decision became the Commissioner’s final
decision. (Tr. 1.)
On September 20, 2013, Plaintiff filed his complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) The parties have completed briefing in this
case. (Doc. Nos. 16, 17.)
Plaintiff asserts the following assignments of error: (1) The ALJ erred in finding that
Plaintiff did not meet Listing 12.05; (2) the ALJ’s residual functional capacity failed to
account for Plaintiff’s moderate limitations in concentration, persistence, and pace; and (3)
the ALJ erred in finding that Plaintiff was capable of performing work at the light exertional
level.
II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was born in October 1962 and was 45-years-old on the alleged disability
onset date. (Tr. 66.) He had at least a high school education and was able to
communicate in English. (Id.) He had past relevant work as a materials handler/unloader,
machine operator, kitchen helper, and stocker. (Id.)
B.
Medical Evidence
Contrary to this Court’s initial order, Plaintiff did not include a Statement of Facts
section in his Brief on the Merits.1 Accordingly, in summarizing the relevant medical
1
The Court reminds Plaintiff that the Magistrate Judge’s initial order in this
case instructs that Plaintiff’s Brief shall cite, by exact and specific transcript
page number, all relevant facts in a “Facts” section. (Doc. No. 8.) Plaintiff
has not been excused from complying with this order. The Court will not cull
2
evidence, the Court relies heavily on the facts the Commissioner has provided in her Brief
on the Merits.
1.
Medical Reports
In his disability application, Plaintiff did not claim disability based on any mental
impairments. (Tr. 199.) Rather, he claimed that he was disabled from his enlarged heart,
high blood pressure, hip and back problems, and migraines. (Id.) In his appeal, however,
Plaintiff primarily challenges the ALJ’s determination of his mental impairments. As the
Commissioner notes, Plaintiff’s medical treatment records relate almost exclusively to his
physical conditions. School records indicate that in 1979, when Plaintiff was 16-years-old,
he had a full scale IQ score of 69 and took special education courses. (Tr. 265.) In 2011,
Plaintiff was assessed with adjustment disorder with mixed anxiety and depressed mood.
(Tr. 859.) Other than scarce school records and a remote treatment note from 2011, the
record is bereft of evidence relating to any psychiatric conditions.
2.
Agency Reports
Plaintiff underwent a consultative examination with A. E. Virgil, Ph.D., in March
2010. (Tr. 559-563.) When asked why he was disabled, Plaintiff replied, “Uhm, I got heart
problems. Back, hip. Stressed.” (Tr. 559.) Plaintiff reported that he had completed the
through the record and speculate on which portion of the record a party
relies; indeed, the Court is not obligated to wade through and search the
entire record for some specific facts that might support a party’s claims.
See Centerior Serv. Co. v. ACME Scrap Iron & Metal, 104 F. Supp.2d 729,
735 (N.D. Ohio 2000) (Gaughan, J.) (citing InterRoyal Corp. v. Sponseller,
889 F.2d 108, 111 (6th Cir. 1989)). The Court expects Plaintiff’s counsel to
properly set forth all facts relevant to his arguments in future briefs unless
otherwise directed by Court order.
3
eleventh grade and attended special education classes. (Tr. 560.) He also noted that he
had been in and out of jail and prison all of his life for possession of drugs and drug
trafficking. (Id.) Plaintiff denied any psychiatric treatment history but stated that he
participated in a drug treatment program in 2004. (Id.) On examination, Plaintiff’s speech
was understandable and his thought content was logical and coherent. (Id.) He
responded appropriately, exhibiting no apparent difficulty comprehending inquiries. (Id.)
He reported feeling depressed because he had no income and needed to rely on his
parents for help. (Tr. 561.) Dr. Virgil noted that Plaintiff denied any hallucinatory or
delusional activity and displayed no such activity during the examination, and that a
psychotic disorder was not otherwise evidenced. (Id.) Plaintiff reported being suspicious
of others and feeling as if he is being watched and talked about by other people. (Id.)
Plaintiff reported that he lived with his eight-year-old daughter. (Id.) When asked
about his daily activities, Plaintiff stated that he looked for jobs, watched a lot of television,
did household chores, cooked, and shopped independently. (Id.) Plaintiff reported having
friends at church and attending religious services once weekly. (Id.)
Testing revealed that Plaintiff had a Global Assessment of Functioning (GAF) score
of 55.2 (Tr. 563.) However, Dr. Virgil noted that from a functional perspective, Plaintiff was
able to carry out in home and community activities of daily living and therefore his
2
The GAF scale incorporates an individual’s psychological, social, and
occupational functioning on a hypothetical continuum of mental health illness
devised by the American Psychiatric Association. A GAF score between 51
and 60 indicates moderate symptoms or moderate difficulty in social,
occupational, or school functioning.
4
functional GAF was estimated to be a 62,3 indicating mild symptoms. (Id.) Plaintiff had a
full scale IQ score of 60. (Tr. 562.)
Dr. Virgil assessed depressive disorder, not otherwise specified (NOS); borderline
intellectual functioning (BIF); and personality disorder NOS. (Tr. 562.) He opined that
Plaintiff was mildly impaired in his ability to cooperate with supervisors and/or coworkers in
a normally pressured work setting; mildly impaired in his ability to understand, remember,
and follow instructions due to his BIF, but capable of understanding, remembering, and
following simple, and some multi-step, repetitive tasks; moderately impaired in his ability to
maintain attention, concentration, persistence, and pace to perform routine tasks; and
moderately impaired in his ability to withstand the stress and pressures associated with
day-to-day work activity. (Tr. 563.)
On March 21, 2010, state agency medical consultant Carl Tishler, Ph.D., rendered
an opinion regarding Plaintiff’s residual functional capacity (RFC). Dr. Tishler opined that
Plaintiff was moderately limited in the following areas: the ability to maintain attention and
concentration for extended periods; the ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; the ability to
sustain an ordinary routine without special supervision; the ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods;
and the ability to respond appropriately to changes in the work setting. (Tr. 578-579.) Dr.
Tishler noted that Plaintiff did not allege a mental impairment but took special education
3
A GAF score between 61 and 70 indicates mild symptoms or some difficulty
in social, occupational, or school functioning.
5
classes while in school, and that Plaintiff denied any psychiatric treatment history. (Tr.
580.) Dr. Tishler also noted that Plaintiff had trouble with concentration and withstanding
stress, he had mild limitations in relating to others and understanding and following
instructions, and he was able to carry out in home and community activities of daily living
(ADL) tasks. (Tr. 581.) Furthermore, Dr. Tishler opined that Plaintiff retained the ability to
understand, remember, and carry out some moderately complex routine tasks in a relaxed
setting; he could handle occasional and superficial interactions with others, including the
public; and he should not be expected to handle frequent changes, frequent conflict, or
fast-paced production demands. (Id.)
C.
Hearing Testimony
1.
Plaintiff’s Hearing Testimony
At the time of his hearing, Plaintiff was 49-years-old and weighed 284 pounds. (Tr.
20.) He was single and had five children. (Id.) He lived by himself in an apartment owned
by his father and received $115 per month from welfare and $200 per month in food
stamps. (Tr. 21.) Plaintiff lost his driver’s license in 2005 for failing to pay child support.
(Id.) He depended on friends and relatives for transportation. (Id.)
Plaintiff testified that he could not work due to chest pains and a total hip
replacement. (Tr. 25.) He had constant pain in his right and left hips. (Tr. 32.) He also
had high blood pressure. (Tr. 29.) Plaintiff took several medications but testified that he
did not experience any side effects from them. (Id.) He stated that he had never had any
mental health treatment. (Tr. 31.)
Plaintiff could lift a gallon of milk. (Tr. 34.) He could reach objects that were in front
of him but had trouble bending down to lift things. (Tr. 35.) He testified that he could not
6
bend at the waist and had not been able to tie his shoes for the past two years. (Id.) He
could not kneel down without pain. (Id.) Plaintiff stated that his memory and concentration
were average. (Id.) He was able to take care of his personal needs such as grooming,
bathing, and dressing. (Tr. 36.) Plaintiff did not cook, clean, or go grocery shopping. (Tr.
37.) He occasionally visited with friends and family. (Id.)
2.
Vocational Expert’s Hearing Testimony
Selena Earl, a vocational expert, testified at Plaintiff’s hearing. The ALJ asked the
VE to assume a hypothetical individual of Plaintiff’s age, education, and work experience.
(Tr. 41.) The individual would be limited to lifting and carrying 10 pounds frequently and 20
pounds occasionally; could stand and walk two out of eight hours; and could sit six out of
eight hours. (Tr. 41-42.) The individual could occasionally: operate right foot controls;
climb ramps and stairs; and stoop, kneel, crouch, crawl, and balance. (Tr. 42.) The
individual could never climb ropes, ladders, and scaffolds and should avoid all exposure to
hazards. (Id.) Furthermore, the individual could perform only simple, routine, repetitive
tasks. (Tr. 43.) The VE testified that the hypothetical individual could perform such jobs
as a shipping receiving weigher (Dictionary of Occupational Titles (“DOT”) 222.387-074), a
small parts assembler (DOT 706.684-022), and an electronics worker (DOT 726.687010).
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when he
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y of
Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled
when he cannot perform “substantial gainful activity by reason of any medically
7
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
months.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott v.
Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that he
is not currently engaged in “substantial gainful activity” at the time he seeks disability
benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show that
he suffers from a “severe impairment” in order to warrant a finding of disability. 20 C.F.R.
§§ 404.1520(c) and 416.920(c). A “severe impairment” is one that “significantly limits . . .
physical or mental ability to do basic work activities.” Abbot, 905 F.2d at 923. Third, if the
claimant is not performing substantial gainful activity, has a severe impairment that is
expected to last for at least twelve months, and the impairment meets a listed impairment,
the claimant is presumed to be disabled regardless of age, education, or work experience.
20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant’s impairment does not
prevent him from doing his past relevant work, the claimant is not disabled. 20 C.F.R. §§
404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant’s
impairment does prevent him from doing his past relevant work, if other work exists in the
national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R.
§§ 404.1520(g), 404.1560(c), and 416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
8
Security Act through December 31, 2009.
2.
The claimant has not engaged in substantial gainful activity since July
1, 2008, the alleged onset date.
3.
The claimant has the following severe impairments: lower extremity
disorders; spinal disorders; obesity; borderline intellectual functioning;
cardiovascular disorders; tension headaches; personality disorder;
polysubstance abuse; and an adjustment disorder with mixed anxiety
and a depressed mood.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5.
After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except: the claimant can stand or
walk for two of eight hours; he can occasionally operate foot controls
with his right lower extremity; he can never climb ladders, ropes, or
scaffolds; he can occasionally climb ramps or stairs, stoop, kneel,
crouch, crawl, and balance; he must avoid all exposure to hazards; and
he is limited to simple, routine, repetitive tasks.
6.
The claimant is unable to perform any past relevant work.
7.
The claimant was born in October 1962 and was 45-years-old, which
is defined as a younger individual age 18-49, on the alleged disability
onset date.
8.
The claimant has at least a high school education and is able to
communicate in English.
9.
Transferability of jobs skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills.
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform.
11.
The claimant has not been under a disability, as defined in the Act, from
July 1, 2008, through the date of this decision.
9
(Tr. 58-67.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th
Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of Soc.
Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in the
record to determine if the ALJ’s decision is supported by substantial evidence, regardless
of whether it has actually been cited by the ALJ. Id. However, the court does not review
the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v.
Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
The Commissioner’s conclusions must be affirmed absent a determination that the
ALJ failed to apply the correct legal standards or made findings of fact unsupported by
substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th
Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports the
opposite conclusion. Ealy, 594 F.3d at 512.
B.
Plaintiff’s Assignments of Error
1.
The ALJ Erred in Finding that Plaintiff did not Meet Listing
12.05.
Plaintiff argues that the ALJ erred in finding that he did not meet Listing 12.05(B) for
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intellectual disability. According to Plaintiff, he had a valid performance IQ score of 56 as
well as deficits in adaptive functioning manifested before age 22, and therefore the ALJ
should have determined that he met all of the criteria for Listing 12.05(B). For the following
reasons, Plaintiff’s argument lacks merit.
Listing 12.05 sets forth the requirements for finding disability resulting from
“intellectual disability.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. In its first paragraph,
Listing 12.05 provides the diagnostic description of the impairment:
Intellectual disability refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age
22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
Id. In other words, in order to satisfy the requirements of the Listing, an individual must,
first, demonstrate the onset of the deficits described in the diagnostic description prior to
age 22, and, second, satisfy the requirements of any one of the four subsections. See
Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 676 (6th Cir. 2009) (noting that an IQ
below 70 was not sufficient on its own to satisfy Listing 12.05, as the claimant must “still
satisfy the three-prong definition of mental retardation” and one of the subsections). As
relevant to this case, an individual may satisfy the requirement of subsection (B) by
demonstrating a “valid verbal, performance, or full scale IQ of 59 or less.” Id.
Here, the ALJ determined that the severity of Plaintiff’s mental impairments did not
meet or medically equal the criteria of listing 12.05. (Tr. 59.) The ALJ explained:
I have fully considered listing 12.05. The claimant’s representative
argues that the claimant meets listing 12.05 due to his IQ scores
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and limitations from his other impairments (Ex. 20E). I do not find
this persuasive, for the reasons discussed below. As discussed,
the claimant’s tenth grade intelligence testing revealed an IQ of 69.
At the time, the claimant was fourteen years old. The claimant
was noted to have a social age equivalent of twelve years old. His
teacher noted that his adaptive behaviors fell between the thirteen
and fourteen age year levels. It was noted that the claimant could
make purchases and tell if he had correct change, travel about his
hometown freely, engage in adolescent group activities, and care
for himself alone or care for others, among other abilities. Ex.
17E). Based on the claimant’s school records, I do not find
deficits in adaptive functioning initially manifested during the
developmental period. Therefore, the claimant is unable to meet
or equal listing 12.05, as he has not satisfied the preamble of this
listing.
(Tr. 61.) The ALJ does not address or take issue with Plaintiff’s performance IQ score of
56 from March 2010. (Tr. 562.) Rather, the ALJ bases her decision that Plaintiff does not
meet Listing 12.05 on her conclusion that Plaintiff did not have significant sub-average
general intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period. Accordingly, the issue becomes whether substantial
evidence supports the ALJ’s determination that Plaintiff did not satisfy the threshold
diagnostic description of Listing 12.05.
“Adaptive functioning includes a claimant’s effectiveness in areas such as social
skills, communication, and daily living skills.” West v. Comm’r Soc. Sec., 240 Fed.Appx.
692, 698 (6th Cir. 2007) (citing Heller v. Doe by Doe, 509 U.S. 312, 328, 113 S.Ct. 2637,
125 L.Ed.2d (1993)). Here, Plaintiff maintains that his school records indicate that he had
deficits in adaptive functioning initially manifested during the developmental period. Plaintiff
was placed in special education classes after receiving D’s and F’s in most subjects in the
first and second grades. (Tr. 262.) Additionally, psychological testing from 1979, when
Plaintiff was 16-years-old, revealed that Plaintiff had a mental age of 11 and a full scale IQ
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score of 69. (Tr. 265.) Notes from the testing state:
Relative to [Plaintiff’s] total ability, he exhibited a good vocabulary,
poor auditory memory, good visual memory, good practical
judgment and good logical reasoning. [Plaintiff] achieved an oral
reading grade score at the second month of the fourth grade level,
a spelling grade score at a beginning fourth grade level and a total
arithmetic grade score at the seventh month of the fifth grade level
as was measured by the Wide Range Achievement Test. In
arithmetic he was able to do addition, subtraction, and
multiplication. He exhibited some knowledge of fractions.
***
[Plaintiff] obtained a social age equivalent of twelve years, no
months as was measured by the Vineland Social Maturity Scale.
His classroom teacher, Mr. Brown was the informant and he
estimated that [Plaintiff’s] adaptive behavior falls at around a 13 or
14 year level. [Plaintiff] does not read on his own initiative, does
not answer ads or make purchases by mail, does not enjoy books,
newspapers nor magazines, does not perform responsible routine
chores and does not follow current events. He can make minor
purchases and make sure that he has the correct change, goes
about his home town freely, can look up names in the phone book
and make phone calls, does do some simple creative work, can
be left to care for himself or others, plays difficult games,
exercises complete care of his dress, buys his own clothing
accessories and engages in adolescent group activities.
(Tr. 265.) Plaintiff argues that the description above shows that he demonstrated deficits
in adaptive functioning prior to age 22, while the ALJ read the description as suggesting the
opposite conclusion.
Here, substantial evidence supports the ALJ’s conclusion that Plaintiff does not
meet Listing 12.05. As the ALJ noted, Plaintiff’s school records, which are scarce,
indicate that at the age of 16, Plaintiff could make purchases and determine if he had
correct change; travel around his hometown freely; engage in adolescent group activities;
buy his own clothing and accessories; play difficult games; look up names in the
13
phonebook; and care for himself alone or care for others. (Tr. 61, 265.) Plaintiff argues
that his school records also could support a finding that he met the diagnostic criteria of
Listing 12.05, such as indications that his adaptive behavior fell at around a 13 or 14 year
level when he was 16-years-old; he was in special education classes; he did not perform
responsible routine chores or follow current events; and he did not enjoy books,
newspapers, or magazines. This is not, however, the appropriate standard to apply to the
ALJ’s decision. An ALJ’s decision that is supported by substantial evidence will not be
overturned even though substantial evidence supports the opposite conclusion. Ealy, 594
F.3d at 512. The Court finds no basis to conclude that the ALJ’s decision regarding Listing
12.05 lacks the support of substantial evidence. Accordingly, Plaintiff’s first assignment of
error does not present a basis for remand.
2.
The ALJ’s Residual Functional Capacity Failed to Account for
Plaintiff’s Moderate Limitations in Concentration, Persistence,
and Pace.
Plaintiff argues that the ALJ’s RFC determination fails to account for all of his
mental limitations. In her decision, the ALJ found that Plaintiff had moderate difficulties
with regard to concentration, persistence, or pace. (Tr. 60.) Furthermore, the ALJ gave
great weight to the opinions of state agency psychological consultants Drs. Virgil and
Tishler, who both opined that Plaintiff was moderately limited in that area. (Tr. 65, 563,
578.) Plaintiff argues that the ALJ’s RFC does not properly account for his moderate
limitations in maintaining concentration, persistence, or pace. For the following reasons,
Plaintiff’s argument is well taken.
RFC is an indication of a claimant’s work-related abilities despite his limitations.
See 20 C.F.R. § 416.945(a). A claimant’s RFC is not a medical opinion, but an
14
administrative determination reserved to the Commissioner. See 20 C.F.R. § 416.945(e).
As such, the ALJ bears the responsibility for assessing a claimant’s RFC based on all of
the relevant evidence, 20 C.F.R. § 416.945(a), and must consider all of a claimant’s
medically determinable impairments, both individually and in combination, S.S.R. 96-8p.
When determining a claimant’s RFC, the ALJ is required “to consider the combined effect
of all of the claimant’s impairments. . . .” Walker v. Sec’y of Health & Human Servs., 980
F.2d 1066, 1071 (6th Cir. 1992).
Here, Plaintiff contends that the ALJ’s RFC determination is internally inconsistent
and unsupported by substantial evidence, because she failed to include restrictions to
accommodate Plaintiff’s “moderate” mental limitations. In making this argument, Plaintiff
cites to Ealy v. Commissioner of Social Security, 594 F.3d 504 (6th Cir. 2010), to support
his contention that the ALJ’s RFC does not sufficiently address Plaintiff’s limitations in his
ability to maintain concentration, persistence, or pace. In Ealy, the record showed that the
claimant had a limited ability to maintain attention over time, even when performing simple,
repetitive tasks. Ealy, 594 F.3d at 516. Specifically, a state agency psychological
consultant limited the claimant’s ability to sustain attention to complete simple repetitive
tasks to “[two-hour] segments over an eight-hour day where speed was not critical.” Id.
The ALJ, however, limited the claimant only to simple, repetitive tasks without any
additional time-based limitations. Accordingly, the Sixth Circuit found that the ALJ failed to
adequately capture the claimant’s limitations in concentration, persistence, and pace. Id.
Ealy undoubtedly stands for the proposition that an ALJ’s hypothetical to a VE must
adequately describe a claimant’s limitations in order to serve as substantial evidence in
support of the ALJ’s conclusions. Id. at 517. However, Ealy “does not require further
15
limitations in addition to limiting a claimant to ‘simple, repetitive tasks’ for every individual
found to have moderate difficulties in concentration, persistence, or pace.” Jackson v.
Comm’r of Soc. Sec., No. 1:10-cv-763, 2011 WL 4943966, at *4 (N.D. Ohio Oct. 18, 2011)
(Boyko, J.). Rather, “Ealy stands for a limited, fact-based ruling in which the claimant’s
particular moderate limitations required additional speed- and pace-based restrictions.” Id.
at 4.
Here, the record supports Plaintiff’s contention that the ALJ erred by failing to
incorporate speed- and pace-based restrictions into her RFC determination. Dr. Tishler
opined that Plaintiff was moderately limited in his ability to maintain concentration,
persistence, and pace to perform routine tasks, and that he should not be expected to
handle frequent changes, frequent conflict, or fast-paced production demands. (Tr. 580581.) The ALJ explicitly acknowledged this opinion and afforded it great weight, noting that
it was uncontradicted and consistent with the record evidence. (Tr. 65.)
Moreover, the
ALJ specifically noted in her Step Three analysis that Plaintiff was moderately limited in his
ability to maintain concentration, persistence, or pace. (Tr. 60.) The ALJ did not, however,
explain why her RFC finding omitted speed- and pace-based restrictions completely.
Instead, the ALJ purports to have believed that she accommodated those restrictions by
limiting Plaintiff to simple, routine, repetitive tasks. Under Ealy, restricting a claimant to
work that is simple, routine, and repetitive does not necessarily address Plaintiff’s
moderate limitations in his ability to maintain concentration, persistence, or pace. As a
result, Plaintiff’s argument that the ALJ’s RFC did not adequately account for his mental
limitations presents a basis for remand.
3.
The ALJ Erred in Finding that Plaintiff was Capable of
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Performing Work at the Light Exertional Level.
Plaintiff argues that the ALJ should have found that he was limited to sedentary,
rather than light, work because the ALJ’s RFC determination limits Plaintiff to standing or
walking for two of eight hours. For the following reasons, Plaintiff’s argument is not well
taken.
The Social Security Regulations provide that, typically, a job is considered “light”
when it requires a good deal of walking or standing. SSR 83-10 (S.S.A. 1983). The
Rulings further provide, however, that a job may also be considered “light” “when it
involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot
controls.” Id. Here, the ALJ asked the VE to consider a hypothetical individual of Plaintiff’s
age, education, and work experience who would be limited to, inter alia, work involving
standing and walking for two hours out of an eight-hour day and sitting for six hours out of
an eight-hour day. (Tr. 42.) In response to the hypothetical, the VE stated: “I would use a
sit/stand option with that for the – at the light level with needing to sit at least six hours.”
(Id.) The VE then identified three jobs the individual could perform that were at the light
exertional level and that would accommodate a sit/stand option. (Id.) In describing the
availability of the identified jobs in Ohio, the VE reduced the numbers to account for the
sit/stand option. (Tr. 42-43.) In her decision, the ALJ relied on the VE’s testimony in
making her Step Five finding, explaining:
I asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work
experience, and residual functional capacity. The vocational
expert testified that given all of these factors the individual would
be able to perform the requirements of unskilled light
representative occupations in the national economy and regional
economy of Ohio, allowing a sit/stand option, such as: (1) shipping
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receiving weigher (222.387-074), 8,697 nationally/926 regionally;
(2) small parts assembler (706.684-022), 17,168 nationally/1,565
regionally; and (3) electronics worker (726.687-010), 9,650
nationally/520 regionally. These job numbers represent reduced
numbers due to the sit/stand option.
Pursuant to SSR 00-4p, I have determined that the vocational
expert’s testimony is consistent with the information contained in
the Dictionary of Occupational Titles. Although a sit/stand option
is not discussed in the Dictionary of Occupational Titles, it is
based on her experience.
Based on the testimony of the vocational expert, I conclude that,
considering the claimant’s age, education, work experience, and
residual functional capacity, the claimant is capable of making a
successful adjustment to other work that exists in significant
numbers in the national economy.
(Tr. 66-67.) Thus, the ALJ explained that she relied greatly on the VE’s testimony to
determine that there are a significant number of jobs in the national economy that Plaintiff
can perform despite his limitation to standing/walking for two hours in an eight hour
workday.
Social Security Ruling 83-12 states that “most jobs have ongoing work processes
which demand that a worker be in a certain place or posture for at least a certain length of
time to accomplish a certain task. Unskilled types of jobs are particularly structured so
that a person cannot ordinarily sit or stand at will.” SSR 83-12. The Ruling also states,
however, that in cases of unusual limitation of ability to sit or stand, a vocational expert
should be consulted to clarify the implications for the occupational base. Id. Here, the ALJ
asked the VE to consider a hypothetical individual who would be capable of a limited range
of light work where standing and walking would be limited to two out of eight hours. (Tr.
42.) The VE opined that there are jobs that an individual with such limitations could
perform. (Tr. 42-43.) The VE reiterated that the jobs she identified would be available with
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a sit/stand option, and she reduced the number of available jobs to account for that. (Id.)
In her decision, the ALJ explained exactly why she found this testimony to be both credible
and reliable. (Tr. 67.)
The ALJ has the responsibility of evaluating a witness’s credibility, including the
credibility of the VE. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
Furthermore, Plaintiff was represented by counsel at his hearing and was afforded an
opportunity at that time to question the VE about any perceived inconsistencies in her
testimony. The ALJ is under no obligation to investigate the accuracy of the VE's
testimony beyond the inquiry mandated by Social Security Regulation 00-4p. It is the
responsibility of plaintiff’s counsel to challenge the accuracy of the VE’s testimony through
cross-examination of the VE. Beinlich v. Comm’r of Soc. Sec., 345 F. App’x 163, 168 (6th
Cir. 2009). “The fact that plaintiff's counsel did not do so is not grounds for relief.” Id.; see
also Donahue v. Barnhart, 446 F.3d 441, 446 (7th Cir. 2002) (“The ruling requires an
explanation only if the discrepancy was ‘identified’—that is, if the claimant (or the ALJ on
his behalf) noticed the conflict and asked for substantiation. Raising a discrepancy only
after the hearing, as Donahue's lawyer did, is too late.”). But see Overman v. Astrue, 546
F.3d 456, 463 (7th Cir. 2008) (explaining that apparent conflicts include those that were so
obvious during the VE’s testimony that the ALJ should have noticed them and elicited
reasonable explanations).
Moreover, even if the ALJ erred in finding that Plaintiff was limited to light, rather
than sedentary, work, that error was harmless. At Plaintiff’s hearing, the ALJ asked the VE
whether there were jobs available at the sedentary level that a hypothetical individual of
Plaintiff’s age, education, and RFC could perform, and the VE responded that the
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individual could perform such jobs as a charge account clerk, a surveillance system
monitor, and a check weigher. (Tr. 43.) Although federal courts cautiously apply the
harmless error analysis in the context of administrative review, this Court has concluded
that the analysis is appropriate where, “‘based on material the ALJ did at least consider
(just not properly), we could confidently say that no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual matter in any other way.’”
Hufstetler v. Comm’r of Soc. Sec., No. 1:10-CV-1196, 2011 WL 2461339 * 10 (N.D. Ohio
June 17, 2011) (White, Mag. J.) (quoting Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.
2004)); see also Darabed v. Astrue, No. 1:10-CV-2626, 2011 WL 7456148, *6 (NM.D.
Ohio Dec. 6, 2011) (Burke, Mag. J.) (“Application of harmless error may be appropriate
where a review of the material that the ALJ did consider leads to the conclusion that no
reasonable fact finder, following the correct procedure, could have resolved the factual
matter in another manner.”) Here, had the ALJ determined that Plaintiff was capable of a
limited range of sedentary, rather than light, work, that determination would not change the
outcome of Plaintiff’s case, as the VE testified that there were a significant number of jobs
available for a person with Plaintiff’s RFC who would be limited to sedentary work. (Tr.
43.) Accordingly, Plaintiff’s third assignment of error does not present a basis for remand.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is REVERSED and
REMANDED for proceedings consistent with this opinion. On remand, the ALJ shall
clearly address Plaintiff’s limitation in his ability to maintain concentration, persistence, or
pace, and accurately account for any limitation the ALJ finds in that area in Plaintiff’s RFC.
IT IS SO ORDERED.
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s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: November 24, 2014
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