Compton v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Michael Dewayne Compton: that decision of Commissioner be REMANDED and this case CLOSED. Objections to R&R due by 10/15/2012. Signed by Magistrate Judge Stephanie K. Bowman on 9/26/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHAEL DEWAYNE COMPTON,
Plaintiff,

Case No. 1:11-cv-626
Spiegel, J.
Bowman, M.J.

v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Michael Dewayne Compton filed this Social Security appeal in order to
challenge the Defendant’s finding that he is not disabled. See 42 U.S.C. §405(g).
Proceeding through counsel, Plaintiff presents two claims of error for this Court’s review.
As explained below, I conclude that the ALJ’s finding of non-disability should be
REVERSED, because it is not supported by substantial evidence in the administrative
record.
I. Summary of Administrative Record
In November 2008, Plaintiff filed applications both for Disability Insurance Benefits
(“DIB”) and for Supplemental Security Income (“SSI”), alleging disability beginning January
1, 2005 due to bipolar disorder and post traumatic stress disorder (“PTSD”). (Tr. 15, 189,
197, 246). After Plaintiff’s claims were denied initially and upon reconsideration, he
requested a hearing de novo before an Administrative Law Judge (“ALJ”). In August 2010,
an evidentiary hearing was held before ALJ Christopher McNeil, at which Plaintiff was

represented by counsel. (Tr. 34-104). At the hearing, the ALJ heard testimony from
Plaintiff, from Plaintiff’s friend (Thomas Hale),1 from Plaintiff’s caseworker (Erin Cadle),
from medical expert Terry R. Schwartz, Psy. D., and from a vocational expert. On
November 2, 2010, the ALJ denied Plaintiff’s applications in a written decision. (Tr. 15-28).
The record on which the ALJ’s decision was based reflects that Plaintiff was 44
years old at the time of the evidentiary hearing. Although Plaintiff completed school only
through the ninth or tenth grade, he later obtained his GED. (Tr. 22, 161, 251). Plaintiff
had past relevant work as a warehouse laborer, warehouse or distribution manager, order
picker, and metal pourer. (Tr. 25, 161). However, Plaintiff has not worked since his alleged
onset date. (Tr. 17). Plaintiff lives in a structured environment (Tender Mercies), in
housing designed for residents with a history of mental illness, although he sometimes
resides for brief periods with his friend, Mr. Hale.

At Tender Mercies, he is given

assistance with medication and provided meals. (Tr. 259). However, he is able to clean
his own room, does his own laundry, and attends daily AA meetings. (Tr. 260). He also
works approximately 2 hours at a time, 2-4 times per week, at a shop at Tender Mercies.
(Tr. 264).
Based upon the record and testimony presented, the ALJ found that Plaintiff had the
following severe impairments: “mood disorder; post-traumatic stress disorder; alcohol
dependence; and opioid dependence.” (Tr. 18). The ALJ concluded that none of Plaintiff’s
impairments alone or in combination met or medically equaled a listed impairment in 20
C.F.R. Part 404, Subp. P, Appendix 1. (Tr. 19). Instead, the ALJ determined that Plaintiff

1

Records describe Mr. Hale as Plaintiff’s “significant other.” (Tr. 278).
2

retains the residual functional capacity (“RFC”) to perform his past relevant work as a metal
pourer and order picker. (Tr. 25). In addition and in the alternative, the ALJ determined
that Plaintiff is capable of performing a full range of work at any exertional level, restricted
only by the following non-exertional limitations:
[T]he claimant is able to adapt to a simple, low stress, repetitive occupation
with regular supervision and few production pressures. Moreover, the
claimant should work in environment that requires no contact with the general
public, and only occasional contact with co-workers and/or supervisors.
(Tr. 19). Based upon the testimony from the vocational expert, and given Plaintiff’s age,
education, work experience, and RFC, the ALJ concluded that aside from his prior work,
“there are other jobs that exist in significant numbers in the national economy that the
claimant also can perform.” (Tr. 26). Accordingly, the ALJ determined that Plaintiff was not
under a disability, as defined in the Social Security Regulations, and was not entitled to DIB
or to SSI. (Tr. 27).
The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s
decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff
first argues that the ALJ erred by rejecting the opinion of Plaintiff’s treating physician.
Plaintiff further contends that the ALJ erred by failing to include in certain limitations in the
hypothetical question posed to the Vocational Expert. As discussed below, the Court
agrees that the ALJ’s errors require reversal and remand.
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability” within the definition
of the Social Security Act. See 42 U.S.C. §1382c(a). Narrowed to its statutory meaning,

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a “disability” includes only physical or mental impairments that are both “medically
determinable” and severe enough to prevent the applicant from (1) performing his or her
past job and (2) engaging in “substantial gainful activity” that is available in the regional or
national economies. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the court’s
first inquiry is to determine whether the ALJ’s non-disability finding is supported by
substantial evidence. 42 U.S.C. § 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) (additional citation and internal quotation omitted). In
conducting this review, the court should consider the record as a whole. Hephner v.
Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ’s
denial of benefits, then that finding must be affirmed, even if substantial evidence also
exists in the record to support a finding of disability. Felisky v. Bowen, 35 F.3d 1027, 1035
(6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion. .
.. The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from the
courts. If the Secretary’s decision is supported by substantial evidence, a
reviewing court must affirm.
Id. (citations omitted).
In considering an application for supplemental security income or disability benefits,
the Social Security Agency is guided by the following sequential benefits analysis: at Step
1, the Commissioner asks if the claimant is still performing substantial gainful activity; at
Step 2, the Commissioner determines if one or more of the claimant’s impairments are

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“severe;” at Step 3, the Commissioner analyzes whether the claimant’s impairments, singly
or in combination, meet or equal a Listing in the Listing of Impairments; at Step 4, the
Commissioner determines whether or not the claimant can still perform his or her past
relevant work; and finally, at Step 5, if it is established that claimant can no longer perform
his past relevant work, the burden of proof shifts to the agency to determine whether a
significant number of other jobs which the claimant can perform exist in the national
economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006);
20 C.F.R. §§404.1520, 416.920.
B. Improper Assessment of Medical Evidence
Applicable regulations generally require the Commissioner to assign “controlling”
weight to the opinions of treating physicians, and to assign greater weight to the opinions
of examining physicians than to the opinions of non-examining consultants.

The

administrative record in this case includes a mental assessment by Plaintiff’s treating
psychiatrist, which, if accepted, would render Plaintiff to be disabled. The record also
contains an assessment by an examining consultant on behalf of the Social Security
Administration, which assessment also would render Plaintiff to be disabled. A third opinion
was offered by a non-examining medical expert, who testified at the administrative hearing.
That expert also opined that Plaintiff was disabled, on the basis that Plaintiff equaled two
separate Listings for mental disability. However, the ALJ rejected all three of these medical
opinions, determining instead that Plaintiff was not disabled, based upon a fourth opinion
by a non-examining consultant who did not have access to Plaintiff’s complete medical
records.
Plaintiff’s two claims of error both concern the ALJ’s rejection of medical opinion
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evidence that favored additional limitations and a disability finding.

On the record

presented, the Court agrees that the ALJ committed reversible error, requiring remand for
further review.
1. Treating Physician Opinion
Plaintiff’s first claim of error concerns the ALJ’s rejection of the opinion of his treating
psychiatrist, Dr. Indre Rukseniene, who completed a mental assessment of Plaintiff’s
functioning in July 2010. (Tr. 663-665). Plaintiff argues that if Dr. Rukseniene’s opinion
had been given the appropriate weight, Plaintiff would have met Listing 12.03(C), based
upon his documented history of chronic schizophrenic, paranoid, or other psychotic
disorder of at least 2 years’ duration. The ALJ gave the July 12, 2010 opinion of Dr.
Rukseniene “little weight.” (Tr. 25). The ALJ explained:
The assessment is severely more restrictive than the finding reached in this
decision, and Dr. Rukseniene seemed to accept as true most, if not all, of the
claimant’s subjective report of symptoms and limitations. Yet, as explained
elsewhere in the decision, good reasons exist for questioning the reliability
of the claimant’s subjective complaints. The assessment is also inconsistent
with the other objective medical evidence of record, which renders it
significantly less persuasive. For example, Dr. Rukseniene reported that the
claimant’s paranoia significantly limits his social functioning; however, only
a few days earlier, treatment notes talk about the claimant being
accompanied by several friends. See Exhibit 19F. Moreover, she indicated
numerous symptoms of depression and anxiety would affect the claimant’s
ability to maintain concentration and attention in the workplace, but the
aforementioned treatment notes revealed clinical findings well within normal
limits and a stable condition. Id.
The possibility always exists that a doctor may express an opinion in an effort
to assist a patient with whom he or she sympathizes for one reason or
another. Another reality that should be mentioned is that patients can be
quite insistent and demanding in seeking supportive notes or reports from
their physicians, who might provide such a note in order to satisfy their
patients’ requests and avoid unnecessary doctor/patient tension. While it is
difficult to confirm the presence of such motives, they are more likely in
situations where the opinion in question departs substantially from the rest
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of the evidence of record, as in the current case.
(Tr. 25). Plaintiff argues that this explanation does not constitute “good reasons” for
rejecting his treating physician’s opinion.
The relevant regulation concerning the opinions of treating physicians, 20 C.F.R.
§404.1527(c)(2), provides: “[i]f we find that a treating source’s opinion on the issue(s) of the
nature and severity of your impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.” Id.; see also Warner v.
Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
The reasoning behind what has become known as “the treating physician rule” has
been stated as follows:
. . . these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of the claimant's medical
impairment(s) and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative examinations or brief
hospitalizations.
Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th Cir. 2004)(quoting former
20 C.F.R. § 404.1527(d)(2)). Thus, the treating physician rule requires “the ALJ to
generally give greater deference to the opinions of treating physicians than to the opinions
of non-treating physicians.” See Blakely v. Commissioner of Social Security, 581 F.3d
399, 406 (6th Cir. 2009).
Despite the presumptive weight given to the opinions of the treating physician, if
those opinions are not “well-supported” or are inconsistent with other substantial evidence,
then the opinions need not be given controlling weight. Soc. Sec. Ruling 96-2p, 1996 WL

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374188, at *2 (July 2, 1996). In such cases, the ALJ should review additional factors to
determine how much weight should be afforded to the opinion, such as “the length of the
treatment relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and any specialization of the treating physician.” Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. §404.1527(c)(2). “[A]
finding that a treating source medical opinion...is inconsistent with the other substantial
evidence in the case record means only that the opinion is not entitled to ‘controlling
weight,’ not that the opinion should be rejected.” Blakley, 581 F.3d at 408 (quoting Soc.
Sec. Rul. 96-2p).
When the treating physician’s opinion is not given controlling weight, the ALJ must
provide “good reasons” for doing so. Id.; 20 C.F.R. §404.1527(c)(2). Good reasons “must
be supported by the evidence in the case record, and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the treating source's
medical opinion and the reasons for that weight." Blakley, 581 F.3d at 406-407; see also
Soc. Sec. Rul. 96-2p. An ALJ’s failure to provide an adequate explanation for according
less than controlling weight to a treating source may only be excused if the error is
harmless or de minimis, such as where “a treating source’s opinion is so patently deficient
that the Commissioner could not possibly credit it.” Blakley v. Comm’r of Soc. Sec., 581
F.3d at 409 (quoting Wilson, 378 F.3d at 547).
The ALJ’s rejection of the treating psychiatrist’s opinion in this case reflects clear
error. The ALJ first rejected the opinion because it was based upon Dr. Rukseniene’s
acceptance of Plaintiff’s “subjective report of symptoms and limitations.” However, the
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nature of psychiatry, by definition, requires some assessment of subjective reports. As the
Sixth Circuit has noted, rejecting psychiatric evidence simply because it is based on
“subjective complaints” can be problematic, since psychiatric reports “do not easily lend
themselves to the same degree of substantiation as other medical impairments.” Walker
v. Sec. Of Health and Human Servs., 980 F.2d 1066, 1071 n.3 (6th Cir. 1992). Thus,
courts have found that a psychological opinion that is established “through clinical
observations” or “proper psychological techniques” can suffice to demonstrate a “medically
determinable” disability. Crum v. Sullivan, 921 F.2d 642, 645 (6th Cir. 1990).
In the case presented, Plaintiff has received treatment at Centerpoint Health, a
community mental health center, at least since 2006.2 Plaintiff’s then-current case-worker
testified at the August 2010 hearing that she had reviewed Plaintiff’s records for the prior
18 months. (Tr. 42). The case-worker, Ms. Erin Cadle, testified that Dr. Rukseniene is “the
psychiatrist at our office that works with all of our clients.” (Tr. 45). Clinical notes from Dr.
Rukseniene are not overwhelming in number, to the extent that most of Plaintiff’s records
from Centerpoint and/or Talbert House reflect illegible signatures. However, the few
records that can clearly be attributed to Dr. Rukseniene reflect that she saw Plaintiff as
often as monthly for management of Plaintiff’s medications. By contrast, Plaintiff’s caseworker testified that she saw Plaintiff weekly, and spoke with him by telephone several
times per week. Presumably Dr. Rukseniene did not perform extensive diagnostic testing
because Plaintiff’s diagnosis was well-established. While Dr. Rukseniene’s clinical notes
were relatively sparse, her expertise as his psychiatrist, and the overwhelming consistency
2

Defendant notes that when seen at Central Com m unity Health in 2004, he did not “follow through, take
m eds, or seek treatm ent, period.” (Tr. 321, 326). However, Plaintiff’s claim ed disability onset date is
2005.
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of her opinions with the other psychiatric and psychological evidence in the record
(discussed below) lead this Court to conclude that the ALJ erred in rejecting her opinions
as based too heavily on Plaintiff’s “subjective” reports. (See generally treatment notes at
Tr. 502, 503, 529, 535, 559, 606, 608, 646, 651).
As stated, the second basis the ALJ gave for rejecting Dr. Rukseniene’s opinions
was that the opinions were alleged to be “inconsistent with the other objective medical
evidence of record.” (Tr. 25). By way of example, the ALJ cited to Dr. Rukseniene’s report
that Plaintiff’s paranoia “significantly limits his social functioning,” which paraphrased Dr.
Rukseniene’s opinion that Plaintiff’s paranoia “limits abilities to be around others” in a work
setting.

(Id., citing Tr. 663).

Dr. Rukseniene specifically opined that Plaintiff was

“markedly” limited in his ability to interact with supervisors and relate to co-workers, to
persist at a work-like tasks, or to maintain attention and concentration. (Tr. 663). She also
determined that he was “extremely” limited in his ability to deal with work stresses. (Tr.
663).
Mischaracterizing Dr. Rukseniene’s opinion as concerning “social functioning,” the
ALJ found the opinion to be “inconsistent” with treatment records, dated July 2-3, 2010, that
reflected that the Plaintiff had been accompanied to an emergency room (where he was
admitted involuntarily to a psychiatric unit, to prevent his suicide)3 by “several friends.”
However, Plaintiff himself reported that his only social contacts were with AA friends. (Tr.
471). The fact that a mentally ill claimant has friends from a AA support group, who would
care enough to accompany him to the hospital in an attempt to prevent his suicide, is not
3

The records reflect that Plaintiff had previously been adm itted to the sam e psychiatric unit for sim ilar
issues of depression and suicidal ideation, from January 11-13, 2010. (Tr. 582-597). Plaintiff reported a
one-day relapse in heroin use at that tim e.
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inconsistent with Dr. Rukseniene’s findings of marked interpersonal impairment in a work
environment.
The second “inconsistency” that ALJ points out also rings hollow. Dr. Rukseniene
determined that Plaintiff’s depression and anxiety would affect his ability to maintain
concentration and attention in the workplace, but the ALJ pointed to the same set of
treatment notes, from Plaintiff’s July psychiatric admission, as reflecting “clinical findings
well within normal limits and a stable condition.” Contrary to the ALJ’s finding, this single
set of treatment notes does not portray a person who operates “well within normal limits.”
Plaintiff was referred to the emergency room by a treating psychiatrist, Dr. Harris,4 and was
admitted after evaluation. Hospital admission notes reflect that Plaintiff presented as
depressed and anxious, with “racing, paranoid, and preoccupied” thoughts and “visual
hallucinations of finding his dead brother who was murder [sic] by his uncle...at a farm
where pigs [were] eating the patient’s brother[‘s] insides.” (Tr. 658). Although Plaintiff was
discharged the next day on grounds that he no longer met criteria for continued involuntary
admission, discharge notes do not reflect someone “within normal limits.” Instead, the
notes reflect that the patient was “much better” after dosing with additional psychiatric
medication (Ativan) to calm him, and he was sufficiently “stable” to continue treatment on
an out-patient basis, rather than requiring continued inpatient treatment. (Tr. 655). His
GAF score at discharge was assessed at 50, reflecting “serious symptoms.” (Id.).5 In fact,
4

Although it is unclear whether Dr. Harris signed any of the clinical notes in the record, there is evidence
that Plaintiff began treating with Dr. Harris in January of 2009. (Tr. 553).

5

The GAF Scale reports an individual’s overall level of functioning. A GAF score of 41-50 indicates that a
person has serious sym ptom s (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or
serious im pairm ent in social or occupational functioning (e.g., no friends and unable to keep a job).
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 34 (2000). Despite wide-spread
use and testim ony about Plaintiff’s GAF score in the record at issue, “the Com m issioner ‘has declined to
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virtually all of Plaintiff’s clinical records throughout the administrative record consistently
portray an individual with long-standing limitations resulting from his mental illness,
consistent with his treating psychiatrist’s assessment.
The ALJ’s third basis for rejecting Dr. Rukseniene’s opinions reflects pure
speculation, suggesting - without any support whatsoever - that Dr. Rukseniene might have
been attempting “to assist a patient with whom ... she sympathizes for one reason or
another” or that her opinions might have been influenced by Plaintiff’s demands for
supportive notes, and Dr. Rukseniene’s desire “to satisfy” Plaintiff’s (presumed) requests
and “avoid unnecessary doctor/patient tension.” (Tr. 25). The ALJ suggested that these
motives are more likely to be present in this case, based upon the alleged departure of Dr.
Rukseniene’s opinions from the rest of the record. However, in reviewing the administrative
record presented, it becomes clear that it is the ALJ’s opinions and not those of Dr.
Rukseniene that depart substantially from the rest of the record.
2. Examining Consultant, Dr. Michael Nelson
The administrative record includes several opinions from consultants, both
examining and non-examining. In December 2008, W. Michael Nelson, Ph.D, examined
Plaintiff on behalf of the Social Security Administration. (Tr. 445). Plaintiff reported a
traumatic childhood to Dr. Nelson, with two siblings having committed suicide, abusive
parents, and a history of sexual abuse by both a neighbor and an older brother. (Tr. 449).
At the age of 11, Plaintiff discovered the body of his older brother, who had been murdered
by Plaintiff’s uncle. (Id). When Plaintiff found his brother’s body, it had been partially eaten

endorse the [GAF] score for “use in the Social Security and SSI disability program s,” and has indicated
that [GAF] scores have no “direct correlation to the severity requirem ents of the m ental disorders listings.’”
DeBoard v. Comm’r of Soc. Sec., 211 Fed. App’x 411 (6th Cir.2006)(additional quotations om itted).
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by pigs. (Id.). In his interview with Dr. Nelson, Plaintiff also reported a history of alcohol
and drug abuse. (Id.).
Dr. Nelson diagnosed Plaintiff with a mood disorder, NOS, with PTSD, and with
alcohol and opioid dependence (reportedly in remission since June 6, 2008). (Id). Dr.
Nelson concluded that Plaintiff had “marked” impairments in his abilities to relate to others
or to withstand workplace stress and pressure, as well as “moderate” impairments in
attention and concentration. (Tr. 450). Dr. Nelson additionally assigned Plaintiff a GAF
score of 45, reflecting “serious difficulties if he were working.” (Tr. 449-450).
The ALJ acknowledged Dr. Nelson’s report, but focused heavily on the more benign
notations by Dr. Nelson that Plaintiff had “adequate eye contact, demeanor, speech, and
an ability to ‘make important decisions affecting his future...’” (Tr. 22, citing Exhibit 6F, pp.
4-5). The ALJ also used partial quotations, noting that “Dr. Nelson found no evidence of
pervasive fragmentation of perception, thought, or emotion, and believed that claimant
could function in the average range.” (Id.). The full quotation from the report reflects Dr.
Nelson’s diagnostic opinion that Plaintiff did not suffer from schizophrenia because “there
are no indications in the clinical interview of any pervasive fragmentation of perception,
thought, or emotion as in the schizophrenias.” (Tr. 448). Similarly, the context of Dr.
Nelson’s reference to Plaintiff functioning in the “average” range pertained to the
assessment of his intelligence. “Intellectually, it is estimated that Mr. Compton has the
ability to function in the average range, as reflected in his use of vocabulary and manner
of expressing himself.” (Tr. 448).
The ALJ rejected all “marked” limitations found by Dr. Nelson, relying in part upon
Dr. Nelson’s acknowledgment that Plaintiff’s medication regimen “had been successful in
13

decreasing his symptoms.” (Tr. 22).

However, Dr. Nelson noted “marked” limitations

despite the moderation of his anxiety symptoms on medication, explaining that
“[n]evertheless,” Plaintiff still suffers from severe anxiety attacks on a weekly basis, and
that Plaintiff’s “legs and hands shook very noticeably throughout the clinical interview.” (Tr.
447).
In giving Dr. Nelson’s positive findings “some weight” while simultaneously rejecting
Dr. Nelson’s negative findings, the ALJ found that Plaintiff “has demonstrated a level of
functioning significantly beyond that reported to Dr. Nelson during his evaluation.” (Tr. 24).
The ALJ also was dismissive of Dr. Nelson’s conclusions because “Dr. Nelson seemed to
accept as true the claimant’s subjective report of symptoms and limitations.” (Id.). As
discussed above with respect to the ALJ’s rejection of Dr. Rukseniene’s opinions, rejecting
a psychological opinion merely because it is based upon a patient’s own “subjective report”
is not a sufficient reason to reject an opinion that is established “through clinical
observations” or “proper psychological techniques.” See Crum v. Sullivan, 921 F.2d 642,
645 (6th Cir. 1990).6 Here, the ALJ’s use of partial quotations and findings from Dr.
Nelson’s report also suggests an interpretation that is not fully supported by this Court’s
review of that report.
3. Medical Expert/Advisor, Dr. Terry Schwartz
In cases where the medical records are extensive and/or particularly complex, an
ALJ may seek testimony from an independent medical advisor or medical expert (ME) as
the ALJ did in this case, in order to “make sense of the record.” Buxton v. Halter, 246 F.3d

6

Ironically, the ALJ appeared to accept wholesale the report of a non-exam ining psychologist, whose
report was not based upon clinical observations, but instead was based upon a review of incom plete
records and at tim es appears to have m ischaracterized Plaintiff’s “subjective reports.”
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762, 775 (6th Cir. 2001). Here, Terry R. Schwartz, Psy.D., provided testimony regarding
Plaintiff’s mental limitations. Like the opinions of other medical sources, a medical expert’s
opinion may constitute substantial evidence when supported by other medical evidence of
record. See Atterberry v. Sec’y of Health and Human Servs., 871 F.2d 567, 570 (6th Cir.
1989). Although the opinion of a treating physician ordinarily is entitled to greater weight
than the opinion of a non-examining medical advisor, see Lashley v. Sec’y of Health and
Human Servs., 708 F.2d 1048, 1054 (6th Cir. 1983), an ALJ’s acceptance of an ME’s
opinion over the opinion of an examining or treating physician can be appropriate,
especially when the medical expert has access to a claimant’s entire medical record. See
Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
On the facts presented, the opinions of Dr. Schwartz were actually consistent with,
rather than inconsistent with, the opinions of Plaintiff’s treating physician and the examining
consultant. Dr. Schwartz testified that Plaintiff’s condition would equal both Listing 12.04
(affective disorder) and Listing 12.06 (anxiety related disorder), resulting in a presumption
that he is disabled. (Tr. 46). Although the ALJ interpreted Dr. Schwartz’s testimony as
stating that “when claimant’s substance use was removed, his affective disorder would no
longer meet or equal a Listing,” (Tr. 25), I do not find support for that conclusion in the
transcript:
A: [Dr. Schwartz] ........I do think he can be described with 12.04, the affective
disorder, 12.06, the anxiety-related disorder, and 12.09, the substance
addition disorder.
Q: All right. ...Are you saying that the claimant, the impairments meet or
medically equal any of those listings?
A: Your honor, I believe that historically, because of his substance abuse and
dependency, that drugs and alcohol unequivocally had a severe impact upon
15

him. And I’m also saying that, as of January [2010], past his relapse...there
are indications that his psychiatric problems, which would include the
affective and the anxiety, continue and would most likely, since they have
global assessment of functioning of 50 and 45 and so forth, there are, there’s
one or two indications here of 55, which is not as bad, but, anyway, most
likely would.
Q: Would what?
A: Would meet or equal the 12.04 and 12.06.
(Tr. 45-46, emphasis added).
Dr. Schwartz testified that Plaintiff had moderate limitations in activities of daily
living, marked limitations in social functioning, and marked limitations in maintaining
concentration, persistence, and pace. (Tr. 48). Dr. Schwartz also testified that Plaintiff’s
condition deteriorated after Plaintiff stopped using substances, based upon his most recent
treatment records, (Tr. 56). In that respect, Dr. Schwartz expressed some doubt about the
opinions of another non-examining consultant (upon whose opinions the ALJ ultimately
relied), because that consultant did not have access to or review Plaintiff’s most recent
records. However, upon prompting from the ALJ, Dr. Schwartz further testified that he
found “not a thing” in the records to support Dr. Rukseniene’s description of the extreme
limitations she included on Plaintiff’s mental RFC form. (Tr. 57).
Plaintiff argues persuasively that his symptoms were more severe than as described
by Dr. Schwartz. For example, although Dr. Schwartz minimized Plaintiff playing “movies”
in his head as not “particularly disturbing,” (Tr. 60), the records and Plaintiff’s own
testimony reflect that the so-called “movies” were of Plaintiff’s brother’s death or his
daughter being raped. (Tr. 60-61, 74, 76). Plaintiff additionally complains that the medical
advisor failed to acknowledge notations in Plaintiff’s records to “AV,” or audio-visual

16

hallucinations. (Tr. 67). In fact, review of the transcript of Dr. Schwartz’s testimony reflects
that he frequently professed an inability to read Plaintiff’s clinical records, particularly those
with details that supported Plaintiff’s PTSD diagnosis, (see Tr. 61, 63, 65-67), and/or an
inability to interpret the same records. Nevertheless, Dr. Schwartz’s opinion was rejected
by the ALJ to the extent that his overall testimony supported a finding that Plaintiff met or
equaled one or more of the listed impairments for a mental disability.
4. Non-examining, Non-testifying Consultant
Rather than fully accepting any of the referenced three medical opinions, the ALJ
relied exclusively on a mental RFC form completed by a non-testifying, non-examining
consultant, Patricia Semmelman, Ph.D.

Dr. Semmelman completed her report a few

weeks after Dr. Nelson’s examination of Plaintiff, on January 13, 2009, but rejected Dr.
Nelson’s examination findings and conclusions. (Tr. 452-468). Dr. Semmelman did not
have access to or review Plaintiff’s treatment records after 2008; in short, she did not
review most of the treatment records that were before the ALJ. As discussed above, those
records reflect additional severe limitations, consistent with Plaintiff’s statements to the
consultative examiner, and consistent with the testimony of Plaintiff’s case manager and
the opinions of his treating psychiatrist.
By contrast, Dr. Semmelman completed a mental RFC assessment that indicated
only “moderate” limitations in Plaintiff’s social functioning and in his concentration,
persistence and pace, with “mild” limitations in daily living. (Tr. 462). As counsel noted at
the hearing, Dr. Semmelman’s notes inaccurately reflect that Plaintiff was in treatment for
only a couple of months. (See Tr. 49-50, 468). The other reasons provided by Dr.
Semmelman for rejecting the opinions of Dr. Nelson were that: (1) Plaintiff “enjoys cooking
17

and reports he engages in some hhc [household chores],” (2) Plaintiff inconsistently
reported the details of his brother’s murder, and which years of childhood he was sexually
abused; (3) Plaintiff’s records reflect inconsistent reports of PTSD symptoms and anxiety;
(4) Plaintiff’s records do not contain drug testing to substantiate that he has been clean and
sober; (5) records contain inconsistent reports of the degree to which Plaintiff socializes;
and (6) records contain inconsistent reports of hallucinations. (Tr. 468). Dr. Semmelman’s
opinions do not appear to be supported by the administrative record reviewed by this Court.
Given that Dr. Semmelman did not have access to or review the majority of Plaintiff’s most
critical treatment records, it was error for the ALJ to solely rely on her opinion to the
exclusion of all others. See Blakley, 581 F.3d at 409 (remanding where the non-reviewing
consultant had failed to review the most recent medical records, and the ALJ failed to
indicate that he had “at least considered [that] fact before giving greater weight” to the
consulting physician’s opinions, quoting Fisk v. Astrue, 253 Fed.Appx. 580, 585 (6th Cir.
2007)).
C. Improper Finding of Prior Relevant Work
In addition to the referenced errors in interpreting the medical evidence, Plaintiff
complains that the VE did not consider the sustained degree of concentration, persistence
and pace required by Plaintiff’s prior jobs of metal pourer and order picker.
Plaintiff points out that the ALJ determined that the job of metal pourer was never
performed at the substantial gainful activity level (Tr. 18), so that position should not have
been considered to be past relevant work. Defendant does not disagree, but argues that
any error was harmless, given testimony that Plaintiff could still work as an order picker or
packer.
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However, both the job of packer and the job of order picker are listed at the DOT R2
level of reasoning, defined as requiring the ability to “[a]pply commonsense understanding
to carry out detailed but uninvolved written or oral instructions,” and to [d]eal with problems
involving a few concrete variables in or from standardized situations.” See
Http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM (Description of R2
level of reasoning, emphasis added); see also generally DOT 922.687.058 (description of
warehouse worker or order picker; DOT 920.587.018 and DOT 559,687.074 (description
of packer); Edwards v. Barnhart, 383 F. Supp.2d 920, 931 (E.D. Mich. 2005)(noting that job
of packer “seems to require a degree of sustained degree of concentration, persistence and
pace.”).
Defendant alternatively argues that the ALJ’s conclusion can nevertheless be upheld
because Dr. Semmelman opined that Plaintiff could “sustain concentration and attention
for routine tasks,” (Tr. 468), and even Dr. Rukseniene opined that Plaintiff “would be able
to complete the first one or two steps of directions.” (Tr. 664). However, Dr. Semmelman
also characterized Plaintiff as “moderately” limited in his abilities to carry out detailed
instructions, to maintain attention and concentration for extended periods, and to work in
coordination or proximity to others without being distracted. (Tr. 366). In addition, aside
from the fact that Dr. Semmelman’s opinions fall short of substantial evidence, the ALJ
failed to include any restrictions on Plaintiff’s ability to sustain concentration, persistence
and pace in the hypothetical presented to the vocational expert. The ALJ’s shortened
reference to “simple, low-stress, repetitive” jobs with “few production pressures,” is
insufficient. (Tr. 102). See generally Ealy v. Comm’r, 584 F.3d 504, 516 (6th Cir.
2010)(where medical source opinions specifically limited Plaintiff’s ability to sustain
19

attention and imposed restrictions in pace, speed and concentration, ALJ’s “streamlined”
hypothetical omitting those restrictions was insufficient); accord Ramirez v. Barnhart, 372
F.3d 546, 552-553 (2d Cir. 2004)(hypothetical limiting claimant to simple, repetitive, one
to two step tasks not sufficient to encompass deficiencies in concentration, persistence and
pace); Edwards v. Barnhart, 383 F. Supp.2d at 930-931 (hypothetical limiting claimant to
“jobs entailing no more than simple, routine, unskilled work” not adequate to convey
moderate limitation in ability to concentrate, persist, and keep pace). Therefore, this error
also requires remand.
D. Remand Required to Reconsider Listing Criteria
The ALJ concluded that Plaintiff did not meet or equal Listing 12.04. Although
Plaintiff had argued (and the testimony at the hearing supported) that he also met Listing
12.06, the ALJ did not discuss that Listing at all. Plaintiff further argues on appeal that he
met or equaled Listing 12.03(C) - a Listing also not referenced by the ALJ.
When a claimant claims disability from a mental impairment, an ALJ must rate the
degree of functional limitation resulting from that impairment with respect to “four broad
functional areas,” including: “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R. §§404.1520a(b)(2),
(c)(3). These four areas are commonly referred to as the “B criteria.” See Rabbers v.
Comm’r of Soc. Sec. Admin., 582 F.3d 647, 653 (6th Cir. 2009)(citing 20 C.F.R. pt. 404,
subpt. P, app. 1, §12.00 et seq.). Evaluating the B criteria, the ALJ determined that Plaintiff
suffered from only “mild” limitations in activities of daily living, with “moderate” limitations
in social functioning, and in maintaining concentration, persistence or pace, and “one
episode of decompensation” after the claimed disability onset date.
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(Tr. 19).

As

discussed, the ALJ’s findings on the B criteria cannot be upheld, because they are not
supported by substantial evidence in the record as a whole.
The ALJ’s findings with respect to the “C criteria” are equally deficient. Even if a
claimant does not satisfy the B criteria, he can still meet or equal a mental impairment
Listing if he alternatively satisfies the “C criteria” of that Listing. Here, the ALJ’s opinion
simply states, in conclusory fashion and without any discussion,7 that “the evidence fails
to establish the presence of the “paragraph C” criteria.” (Tr. 19).
To meet Listing 12.04 under the C criteria, the individual must demonstrate a
“[m]edically documented history of a chronic affective disorder of at least 2 years’ duration
that has caused more than a minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial support.” The
record reflects that Plaintiff has a documented history of a mood disorder of more than 2
years’ duration that meets the first criterion of Listing 12.04(C), in terms of the disorder’s
“more than minimal” effect on Plaintiff’s ability to perform basic work activities, even on
medication with psychosocial support. However, to meet the Listing, the claimant must
additionally show that he meets one of the three following prongs: “1. Repeated episodes
of decompensation, each of extended duration; or 2. A residual disease process that has
resulted in such marginal adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the individual to decompensate;
or 3. Current history of 1 or more years’ inability to function outside a highly supportive
living arrangement, with an indication of continued need for such an arrangement.” Id.

7

Dr. Sem m elm an expressed her opinion only on the B criteria, and did not provide any opinion on
Plaintiff’s ability to m eet the C criteria. (See Tr. 462-463).
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Several pieces of evidence suggest that Plaintiff meets the C criteria. For example,
while the evidence is not entirely clear, given Mr. Hale’s testimony that Plaintiff sometimes
resides with him, Plaintiff appears to have resided at Tender Mercies in a highly supportive
living arrangement, for more than a year. Plaintiff’s case manager testified that she has
contact with him as often as three times per week. See, e.g., Pickett v. Comm’r of Social
Security, Civil Case No. 1:10-cv-528-MRB, 2011 WL 4368308 *17 (S.D. Ohio Aug. 11,
2011), R&R adopted September 19, 2011 (Listing 12.04(C) does not require
institutionalized living; remanding in part to determine whether Plaintiff who was unable to
function outside of home environment, where assistance was provided by family member
and case manager, met or equaled Listing). In addition, Dr. Rukseniene’s opinion supports
a finding that Plaintiff would be unable to tolerate even a minimal increase in mental
demands that would result from adaptation to a work environment. Other witnesses,
including but not limited to Plaintiff himself, testified in a manner consistent with that
opinion.
E. Remand Required for Further Fact-Finding
A sentence four remand under 42 U.S.C. §405(g) provides the required relief in
cases where there is insufficient evidence in the record to support the Commissioner's
conclusions and further fact-finding is necessary. See Faucher v. Secretary of Health and
Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citations omitted).
Despite the errors made by the ALJ, I conclude that remand, rather than an outright
award of benefits, is the appropriate course of action in this case. The evidence of record
as to Plaintiff’s claimed mental disability is limited, particularly for the period of time dating
closer to 2005, and at times is equivocal, warranting further evaluation. Although most of
22

Plaintiff’s GAF scores have been below 50, a handful of scores in July 2006, April 2008,
and February 2010, have ranged from 53-55, which is a level not inconsistent with unskilled
work. (Tr. 321, 483, 613). In addition, the record reflects that Plaintiff has a support
network that includes his AA friends and a partner with whom he has lived at times, and
Plaintiff has been able to regularly use public transportation and go to the grocery store (at
limited times) with his partner.8 Therefore, the evidence of the degree of Plaintiff’s mental
impairment is not so one-sided that an immediate award of benefits should be made by this
Court.

In a sentence four remand, the Court makes a final judgment on the

Commissioner's decision and "may order the Secretary to consider additional evidence on
remand to remedy a defect in the original proceedings, a defect which caused the
Secretary's misapplication of the regulations in the first place." Faucher, 17 F.3d at 175.
III. Conclusion and Recommendation
The ALJ committed reversible error, and his finding of non-disability is not wellsupported by substantial evidence in the record. Therefore, IT IS RECOMMENDED THAT:
1. The decision of the Commissioner to deny Plaintiff DIB and SSI benefits be
REVERSED and this matter be REMANDED under sentence four of 42 U.S.C. §405(g);
2. On remand, the ALJ be instructed to: (1) re-assess all medical opinions, including
the opinion of Plaintiff’s treating physician, and provide additional reasons for the evaluation
of such opinions consistent with this report; (2) carefully review evidence of Plaintiff’s
allegations of additional limitations; (3) include all relevant limitations into any hypothetical

8

Plaintiff’s reply m em orandum points out several instances, including the reference to grocery shopping, in
which Defendant has used partial quotations from the record and/or m ischaracterized the record. W hile
the Court appreciates zealous advocacy, the use of m isleading partial quotations by Defendant at tim es
exceeds that boundary.
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presented to a vocational expert, and (4) fully evaluate whether Plaintiff meets or equals
Listing 12.03, 12.04, or 12.06;
3. As no further matters remain pending for the Court’s review, this case be
CLOSED.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHAEL DEWAYNE COMPTON,

Case No. 1:11-cv-626

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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