Daniel v. Commissioner of Social Security

Filing 13

ORDER adopting in part Report and Recommendation 11 ; sustaining in part plaintiff's objections to the report and recommendation; Reversing and remanding the case to the ALJ. Signed by Judge Sandra S Beckwith on 9/21/15. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Sandra E. Daniel,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.

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) Case No. 1:14-CV-775
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ORDER

This matter is before the Court on Magistrate Judge Bowman’s Report and
Recommendation of August 19, 2015 (Doc. No. 11) and Plaintiff Sandra E. Daniel’s
objections to the Report and Recommendation (Doc. No. 12).

In her Report and

Recommendation, Magistrate Judge Bowman concluded that the Administrative Law
Judge’s (“ALJ”) determination that Plaintiff is not disabled under the Social Security
regulations was supported by substantial evidence.

Judge Bowman, therefore,

recommended that the ALJ’s decision be affirmed. Plaintiff objects to the Report and
Recommendation. For the reasons that follow, Plaintiff’s objections to Judge Bowman’s
Report and Recommendation are SUSTAINED IN PART AND OVERRULED IN PART.
The Court does not adopt the Report and Recommendation to the extent that Judge
Bowman concluded that the ALJ did not err by not considering the opinion of one of
Plaintiff’s treating physicians.

The Court adopts the remainder of the Report and

Recommendation. Nevertheless, the decision of the ALJ finding that Plaintiff is not
disabled under the Social Security regulations is REVERSED. This case is REMANDED
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to the ALJ pursuant to Sentence Four of 42 U.S.C. § 405(g) for further proceedings
consistent with this order.
I. Background
In April and August 2010, Plaintiff Sandra E. Daniel filed applications for disability
insurance benefits and supplemental security income based on impairments of low back
and neck pain, obesity, heart problems, depression, and anxiety. Plaintiff alleged an onset
date of disability of May 1, 2008. Plaintiff’s applications were denied initially and upon
reconsideration. She requested and received an evidentiary hearing before an ALJ. In
actuality, the ALJ convened three separate hearings between August 2012 and April 2013.
Plaintiff testified on her own behalf during the hearing and the ALJ received testimony from
both a medical expert (Dr. Mary Buban) and a vocational expert (Dr. George Parsons).
On June 10, 2013, the ALJ issued a written decision (Tr. 97-114), finding that
Plaintiff is not disabled according to the Social Security regulations. Proceeding through
the five-step disability analysis sequence, the ALJ determined that Plaintiff has severe
impairments of degenerative disc disease of the lumbosacral spine, obesity, a depressive
disorder, and an anxiety disorder. The ALJ then found that Plaintiff does not have an
impairment or combination of impairments that meets a listed impairment.
Next, the ALJ found that Plaintiff has the physical residual functional capacity
(“RFC”) to perform a limited range of work at the light level of exertion. Plaintiff would be
limited to jobs where she can alternate between sitting and standing every 30 minutes.
Additionally, Plaintiff cannot work around vibrations, heights, ladders, ropes, or scaffolds.
The ALJ also found that Plaintiff’s mental RFC would limit her to jobs with simple, routine,
repetitive work that do not require piece-work, are not fast-paced, and which do not require
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a strict production quota. Additionally, Plaintiff would need a job with only superficial
contact with supervisors and co-workers and in which she would never interact with the
public.
Based on that RFC, the vocational expert testified that Plaintiff would not be able to
perform her past relevant work as a telephone solicitor and a customer service
representative. The vocational expert testified, however, that this RFC would permit
Plaintiff to perform at least three jobs that exist in significant numbers in the local and
national economy, bus monitor, housekeeper/maid, and inserter/folding machine operator.
Because Plaintiff has the RFC to perform these jobs, the ALJ concluded that Plaintiff is not
disabled under the Social Security regulations.
In developing Plaintiff’s mental and physical RFC, the ALJ rejected three opinions
which, if accepted by the ALJ, would preclude competitive employment according to the
vocational expert.
First, the ALJ gave “little weight” to the opinion of Dr. O’Dea, one of Plaintiff’s
treating physicians. Dr. O’Dea provided an opinion indicating that Plaintiff’s physical
impairments prevent her from performing even sedentary work. Tr. 985-987. The ALJ,
however, determined that Dr. O’Dea’s opinion was not well-supported or consistent with
the other evidence in the record. The ALJ, though, gave “significant weight” to the opinion
of a state agency consultant who reviewed Plaintiff’s medical records and adopted the
physical RFC from a prior disability application concluding that she can perform a limited
range of light work. Tr. 109-110.1
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Plaintiff filed a claim for supplemental security income and disability insurance
benefits in November 2003 based on impairments of osteoarthritis, fibromyalgia,
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Second, the ALJ gave “little weight” to the opinion of Dr. Khalily, Plaintiff’s treating
psychiatrist. Dr. Khalily provided an opinion indicating that Plaintiff has marked to extreme
limitations in most areas of mental functioning. Tr. 624-630. The ALJ, however, similarly
determined that Dr. Khalily’s opinion was not well-supported or consistent with other
evidence in the record. Tr. 111.
Third, the ALJ gave “little weight” the opinion of Dr. Kenford, a state agency
examining psychologist. Dr. Kenford performed a consultative examination of Plaintiff and
issued a report finding that she has marked to extreme limitations in mental functioning.
Tr. 614-622. The ALJ rejected Dr. Kenford’s opinion because it was based primarily on
Plaintiff’s subjective report of her mental limitations. The ALJ found, however, that Plaintiff
exaggerated her presentation to Dr. Kenford and cited grounds for concluding that Plaintiff
was not credibly reporting her limitations to Dr. Kenford. Tr. 111. Instead, in adopting
Plaintiff’s mental RFC, the ALJ gave “significant weight” to the opinion of the medical
expert, Dr. Buban. Tr. 110. Dr. Buban reviewed Plaintiff’s records and testified during the
evidentiary hearing that Plaintiff would “do best with a simple, repetitive, low-stress job[.]”
Tr. 42.
It should be noted at this point that in developing Plaintiff’s physical RFC, the ALJ
discussed office treatment notes from another of Plaintiff’s treating physicians, Dr. Wunder.
Tr. 105. The ALJ, however, did not discuss or even acknowledge an opinion from Dr.
Wunder indicating that Plaintiff is limited to performing sedentary work. Tr. 787-788. This

scoliosis , herniated spinal disks, and depression. The ALJ issued a written decision
denying this claim in January 2006 on the grounds that Plaintiff had the mental and
physical RFC to perform several assembler, hand packer, and inspector positions which
existed in significant numbers in the national economy. Tr. 160-169.
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is an important omission because, as Plaintiff argues in her objections, if she is limited to
sedentary work, and does not possess transferrable skills, the medical-vocational
guidelines would direct a finding of “disabled” because of her age (closely approaching
advanced age) at the time the ALJ issued her decision. 20 C.F.R. Pt. 404, Sub. Pt. P.,
Appx. 2, § 201.14;2 see also 20 C.F.R. Pt. 404, Sub. Pt. P., Appx. 2, § 201.00(g)
(“Individuals approaching advanced age (age 50-54) may be significantly limited in
vocational adaptability if they are restricted to sedentary work. When such individuals have
no past work experience or can no longer perform vocationally relevant past work and have
no transferable skills, a finding of disabled ordinarily obtains.”).
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision,
making the ALJ’s decision the final decision of the Commissioner of Social Security.
Plaintiff then filed a timely complaint for judicial review of the ALJ’s decision. Plaintiff raised
five errors in her statement of specific errors. The Court will discuss these assignments of
error in more detail below. Judge Bowman’s report, however, did not find merit to any of
them and recommended that the ALJ’s decision be affirmed.
Plaintiff filed timely objections to Magistrate Judge Bowman’s Report and
Recommendation. The Commissioner did not file a memorandum in response to Plaintiff’s

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The ALJ concluded that transferability of job skills was not material to the
determination of disability because the medical-vocational guidelines support a finding
of “not disabled” regardless of whether Plaintiff has transferable job skills. Tr. 112. The
ALJ presumably reached this conclusion based on her finding that Plaintiff can perform
unskilled work at the light level of exertion. The grid directs a finding of “not disabled”
regardless of transferability of skills if a claimant who is closely approaching advanced
age is capable of performing unskilled work at the light level of exertion. 20 C.F.R. Pt.
404, Sub. Pt. P., Appx. 2, § 202.14.
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objections. Consequently, Plaintiff’s objections to the Report and Recommendation are
ready for disposition.
II. Standard of Review
The relevant statute provides the standard of review to be applied by this Court in
reviewing decisions by the ALJ. See 42 U.S.C. § 405(g). The Court is to determine only
whether the record as a whole contains substantial evidence to support the ALJ’s decision.
“Substantial evidence means more than a mere scintilla of evidence, such evidence as a
reasonable mind might accept as adequate to support a conclusion.”

LeMaster v.

Secretary of Health & Human Serv., 802 F.2d 839, 840 (6th Cir. 1986) (internal citation
omitted). The evidence must do more than create a suspicion of the existence of the fact
to be established. Id. Rather, the evidence must be enough to withstand, if it were a trial
to a jury, a motion for a directed verdict when the conclusion sought to be drawn from it is
one of fact for the jury. Id. If the ALJ’s decision is supported by substantial evidence, the
Court must affirm that decision even if it would have arrived at a different conclusion based
on the same evidence. Elkins v. Secretary of Health & Human Serv., 658 F.2d 437, 439
(6th Cir. 1981). The district court reviews de novo a magistrate judge’s report and
recommendation regarding Social Security benefits claims. Ivy v. Secretary of Health &
Human Serv., 976 F.2d 288, 289-90 (6th Cir. 1992).
III. Analysis
As stated, Plaintiff proffered five assignments of error in her statement of specific
errors. The Court will address these in a different order than presented by Plaintiff.

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A. The Weight Given to Medical Opinions
Plaintiff’s second and third assignment of error contend that the weight the ALJ
assigned to the various medical and psychological opinions was not supported by
substantial evidence. Additionally, as noted, Plaintiff alleges that the ALJ erred by not
considering Dr. Wunder’s opinion that Plaintiff is limited to performing sedentary work. In
her report, Judge Bowman concluded that the weight the ALJ assigned to the medical
opinion of Dr. O’Dea, and the psychological opinions of Drs. Khalily and Kenford, was
supported by substantial evidence. Judge Bowman apparently concluded that the ALJ’s
failure to consider Dr. Wunder’s opinion was a harmless error because Plaintiff failed to
demonstrate that it would result in a finding different from the decision made in her prior
disability claim. In other words, Judge Bowman apparently concluded that Dr. Wunder’s
opinion was not material to the ALJ’s disability determination. See Doc. No. 11, at 13. The
Court, however, agrees with Plaintiff that the ALJ’s failure to consider, or even mention, Dr.
Wunder’s opinion is a procedural error requiring reversal of the ALJ’s decision.
It is not disputed that Dr. Wunder was one of Plaintiff’s treating physicians and that
he saw Plaintiff for persistent complaints of back pain. On April 14, 2008, Dr. Wunder
issued a disability opinion, apparently in support of Plaintiff’s claim for private long-term
disability insurance benefits, indicating that she is limited to sedentary work. Tr. 787-788.
As mentioned above, because of her age, if Plaintiff is limited to sedentary work, and has
no transferable job skills, the medical-vocational grid directs a finding of “disabled.”
The Social Security regulations require the ALJ to give controlling weight to the
opinion of a treating physician unless the ALJ gives “good reasons” not to. Wilson v.
Commissioner of Social Sec., 378 F.3d 541, 544 (6th Cir. 2004). Although Dr. Wunder
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issued his opinion before the alleged onset date of disability, it is not necessarily irrelevant
and may support Plaintiff’s disability claim when considered in the context of the entire
record. See DeBoard v. Commissioner of Soc. Sec., 211 Fed. Appx. 411, 414 (6th Cir.
2006)(“We recognize that evidence presented at an earlier hearing or predating the onset
of disability, when evaluated in combination with later evidence, may help establish
disability.”) (emphasis omitted). Moreover, the Social Security regulations require the ALJ
to consider all medical evidence and opinions submitted by the claimant. 20 C.F.R. §§
404.1527(c)(“Regardless of its source, we will evaluate every medical opinion we receive.”);
20 C.F.R. § 404.1520(a)(3)(“ We will consider all evidence in your case record when we
make a determination or decision whether you are disabled.”).
In this case, contrary to the applicable regulations, the ALJ did not discuss or
apparently even consider Dr. Wunder’s opinion that Plaintiff is limited to sedentary work.
This was a procedural error mandating reversal of the ALJ’s decision, even if Dr. Wunder’s
opinion would not result in a favorable decision, because the claimant is entitled to know
the reasons why her treating physician’s opinion is insufficient to establish her claim.
Wilson, 378 F.3d at 544, 546; see also Keeton v. Commissioner of Soc. Sec., 583 Fed.
Appx. 515, 528-29 (6th Cir. 2014)(ALJ’s failure to discuss opinions of treating psychiatrists
was reversible error). Moreover, the ALJ’s error was not harmless in this case because:
1) Dr. Wunder’s opinion, if accepted by the ALJ, could very well result in a finding of
disability; and 2) is not so patently deficient that the ALJ could not possibly credit it. Wilson,
378 F.3d at 547.
Nevertheless, the weight the ALJ assigned to the opinions of Drs. O’Dea, Khalily,
and Kenford was supported by substantial evidence. As the ALJ noted, the extreme
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functional limitations indicated by Dr. O’Dea were not consistent with her treatment notes,
which often indicated that Plaintiff had a full range of motion and a normal gait. They also
indicated that Plaintiff exercised two to three times a week, which is contrary to Dr. O’Dea’s
opinion that Plaintiff is capable of little or no exertional activity. Tr. 1061-1104
Similarly, Dr. Khalily’s extremely limiting mental RFC opinion is not supported by her
contemporaneous treatments note, which consistently documented that Plaintiff’s
psychological symptoms were moderate. Tr. 951, 955, 971, 980.
Finally, the ALJ reasonably gave little weight to Dr. Kenford’s opinion. As the ALJ
noted, Dr. Kenford’s opinion was based largely, if not entirely, on Plaintiff’s self-reporting
of symptoms. There was a substantial basis, however, for the ALJ to conclude that Plaintiff
exaggerated her symptoms. For example, as the ALJ noted, while Plaintiff reported to Dr.
Kenford that she was so immobilized by depression that she allowed her surroundings to
deteriorate around her, just a few weeks earlier Plaintiff’s social worker noted during a
home visit that her apartment was neat and tidy. Tr. 610.
In summary, the Court sustains Plaintiff’s objections to the Report and
Recommendation to the extent that Judge Bowman concluded that the ALJ’s failure to
consider Dr. Wunder’s opinion was a harmless error. The Court, however, overrules
Plaintiff’s objections to Judge Bowman’s analysis of the weight the ALJ assigned to the
other medical opinions.

B. Plaintiff’s Mental Impairments

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Plaintiff’s first and fifth assignments of error are related to the ALJ’s findings
concerning her mental impairments. In these assignments of error, Plaintiff argues that the
ALJ erred by not incorporating her moderate limitations in concentration, persistence, and
pace into her hypothetical to the vocational expert. Plaintiff contends that the ALJ’s
hypothetical limiting her to unskilled work, without production quotas or a fast-paced
environment, with only superficial contact with supervisors and co-workers, and no contact
with the public, did not accurately portray her moderate limitations in concentration,
persistence, and pace. Consequently, Plaintiff argues, the ALJ made a vocational error in
her hypothetical to the vocational expert by not accounting for these limitations. In her
report, Judge Bowman concluded that the ALJ’s hypothetical was appropriate because no
medical source had imposed pace, speed, and concentration restrictions that were
inconsistent with the mental RFC adopted by the ALJ.
Plaintiff is correct that the ALJ’s hypothetical to the vocational expert must accurately
portray all of her limitations in order for the expert’s testimony to constitute substantial
evidence on the issue of disability. Varley v. Secretary of Health & Human Serv., 820 F.2d
777, 779 (6th Cir.1987). Unlike other courts, the Sixth Circuit has never held that limiting
the claimant to unskilled, repetitive work without production quotas does not adequately
account for moderate deficiencies in concentration, persistence, and pace. Ealy v.
Commissioner of Social Sec., 594 F.3d 504 (6th Cir. 2010), cited by Plaintiff, is
distinguishable because in that case, the medical opinion adopted by the ALJ actually
limited the claimant’s ability to sustain concentration, persistence and pace to two-hour time
segments. The ALJ, however, only asked the vocational expert to assume that the
claimant had moderate limitations in concentration, persistence, and pace. The Court held
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that the ALJ’s “streamlined hypothetical,” which omitted the two-hour concentration
limitations in the opinion adopted by the ALJ, did not accurately convey all of her limitations
to the vocational expert. Id. at 516-17. In this case, though, as Judge Bowman’s report
indicated, no medical source opinion adopted by the ALJ3 included specific time-based
limitations on Plaintiff’s ability to sustain concentration, persistence, and pace. Moreover,
Dr. Buban, the medical expert, reviewed Plaintiff’s entire file and concluded that she is able
to perform simple, repetitive, low-stress jobs. Tr. 42. Therefore, the ALJ’s hypothetical to
the vocational expert sufficiently portrayed all of Plaintiff’s mental limitations. Thus, the
vocational expert’s testimony constitutes substantial evidence on the issue of disability.4
C. Credibility Determination

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“[I]n formulating a hypothetical question, an ALJ is only required to incorporate
those limitations which [she] has deemed credible.” Stanley v. Secretary of Health &
Human Servs., 39 F.3d 115, 118–19 (6th Cir. 1994).
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Somewhat relatedly, Plaintiff contends that the ALJ and the vocational expert
erred in using the Dictionary of Occupational Titles (“DOT”) to determine that the bus
monitor, maid/housekeeper, and inserter/folding machine operator jobs are unskilled
positions. She points out that the Occupational Information Network (“O*NET”)
database, which has been adopted by the Department of Labor, classifies these
positions as involving semi-skilled work. Citing Cunningham v. Astrue, 360 Fed. Appx.
606 (6th Cir. 2010), Plaintiff argues, therefore, that the ALJ failed to prove that she is
capable of performing other work. Despite the Department of Labor’s adoption of
O*NET, the Social Security Administration still relies on the DOT and only requires the
vocational expert’s testimony to be consistent with the DOT. See SSR 00-4p (“In
making disability determinations, we rely primarily on the DOT (including its companion
publication, the SCO) for information about the requirements of work in the national
economy.”); (“Occupational evidence provided by a VE or VS generally should be
consistent with the occupational information supplied by the DOT.”). Cunningham
is inapposite because there the Court held that the vocational expert should have used
O*NET to determine the number of jobs available in the economy that the claimant
could perform with her RFC. See 360 Fed. Appx. at 615-16. The Court, however, did
not decide or even consider whether the vocational expert was precluded from using the
DOT to determine the skill level required to perform a certain occupation.
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Lastly, Plaintiff objects to Magistrate Judge Bowman’s conclusion that the ALJ’s
adverse credibility determination was supported by substantial evidence. Plaintiff points
to a number of records that she contends support her subjective claims of disabling
impairments. An ALJ’s credibility determinations are entitled to considerable deference.
Howard v. Commissioner of Social Sec., 276 F.3d 235, 242 (6th Cir. 2002). Moreover, for
purposes of the Court’s review, the issue is not whether there is evidence to support
Plaintiff’s disability claim but rather whether substantial evidence supports the ALJ’s
decision to discount her credibility. Vance v. Commissioner of Social Sec., 260 Fed. Appx.
801, 803 (6th Cir. 2008); Van Winkle v. Commissioner of Social Sec., 29 Fed. Appx. 353,
356 (6th Cir. 2002).
In this case, substantial evidence supports the ALJ’s credibility determination. As
the ALJ pointed out, there was substantial basis to conclude that Plaintiff exaggerated her
symptoms during Dr. Kenford’s consultative examination. Similarly, Dr. Khalily’s treatment
notes generally indicated that Plaintiff was experiencing only moderate effects from her
mental impairments, contradicting her claim of debilitating depression. Additionally, office
treatment notes often reflected benign or moderate physical findings, contradicting
Plaintiff’s claim of disabling pain. The ALJ noted Plaintiff’s non-compliance with her pain
medication regimen, which she reasonably concluded indicated that Plaintiff was not
suffering as much pain as she claimed. Additionally, the ALJ appropriately cited several
instances of drug-seeking behavior by Plaintiff as a basis to discount her credibility.
Massey v. Commissioner Social Sec. Admin., 400 Fed. Appx. 192, 194 (9th Cir. 2010). Allin-all, Judge Bowman correctly found that the ALJ’s adverse credibility determination was
supported by substantial evidence.
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Accordingly, this objection to the Report and Recommendation is not well-taken and
is overruled.
Conclusion
For the reasons stated above, Plaintiff’s objections to Judge Bowman’s Report and
Recommendation are SUSTAINED IN PART AND OVERRULED IN PART. The Court
does not adopt the Report and Recommendation to the extent that Judge Bowman
concluded the ALJ did not err by not considering the opinion of one of Plaintiff’s treating
physicians.

The Court adopts the remainder of the Report and Recommendation.

Nevertheless, the decision of the ALJ finding that Plaintiff is not disabled under the Social
Security regulations is REVERSED. This case is REMANDED to the ALJ pursuant to
Sentence Four of 42 U.S.C. § 405(g) for further proceedings consistent with this order.

IT IS SO ORDERED

Date September 21, 2015

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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