Snell v. Commissioner of Social Security

Filing 25

ORDER sustaining the objections to the report & recommendation. The report & recommendation is not adopted 22 . The decision of the ALJ is affirmed. Signed by Judge Sandra S Beckwith on 3/8/16. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Wesley L. Snell,

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) Case No. 1:14-CV-947
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Plaintiff,
vs.
Commissioner of Social Security,
Defendant.

ORDER
This matter is before the Court on Magistrate Judge Litkovitz’s Report and
Recommendation of January 26, 2016 (Doc. No. 22) and the Commissioner of Social
Security’s objections to the Report and Recommendation. Doc. No. 23. In her Report and
Recommendation, Judge Litkovitz concluded that the Administrative Law Judge’s (“ALJ”)
determination that Plaintiff is not disabled under the Social Security regulations was not
supported by substantial evidence because the ALJ failed to state the weight she gave to
the opinion of a consultative examining psychologist, Dr. Gronek. Judge Litkovitz further
concluded that this error was not harmless because Dr. Gronek’s opinion was inconsistent
with the mental residual functional capacity adopted by the ALJ. Judge Litkovitz, therefore,
recommended that the ALJ’s decision be reversed and that the case be remanded to the
ALJ pursuant to Sentence Four of 42 U.S.C. § 405(g) for further proceedings, including
evaluating and weighing Dr. Gronek’s opinion. In her objections, the Commissioner argues
that the ALJ did evaluate Dr. Gronek’s opinion and any error she made in not specifically
stating the weight she gave to that opinion was harmless because the reasons for her
decision are discernible from the record.

For the reasons that follow, the Court concludes that any error the ALJ made
evaluating Dr. Gronek’s opinion was harmless. Accordingly, the Commissioner’s objections
to Magistrate Judge Litkovitz’s Report and Recommendation are well-taken and are
SUSTAINED. The Court does not adopt the Report and Recommendation. On de novo
review, the Court concludes that the ALJ’s determination that Plaintiff is not disabled under
the Social Security regulations because there are a significant number of jobs in the
national economy that he can perform was supported by substantial evidence.
Accordingly, the ALJ’s decision is AFFIRMED.
I. Background
Plaintiff Wesley L. Snell filed applications for disability insurance benefits and
supplemental security income based on impairments of spinal stenosis, arthritis, and
depression. The ALJ determined that Plaintiff has severe impairments of status post
lumbar laminectomy and depression. Tr. 16. However, the only issue presented by the
Commissioner’s objections is the ALJ’s assessment of the state agency examining
psychologist and state agency reviewing psychologist’s opinions concerning the effect of
Plaintiff’s mental impairment on his attention, concentration, persistence, and pace. The
Court, therefore, will limit its discussion of the medical evidence to that issue.
In May 2012, Dr. Taylor Gronek performed a consultative psychological examination
of Plaintiff. Dr. Gronek concluded that Plaintiff has no limitations in following simple
instructions, responding appropriately to supervisors and co-workers, and responding
appropriately to work pressures in a work setting. Tr. 521. Dr. Gronek concluded, however,

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that “[i]t is likely that the claimant will work at a slower pace as a result of concentration
difficulties secondary to pain. He may show work pace slower than other work peers.” Id.
Reviewing psychologist Dr. Aracelis Rivera indicated that Dr. Gronek’s opinion is
entitled to “great weight.” Tr. 80. Dr. Rivera then opined that Plaintiff’s ability to maintain
concentration and pace for extended periods is moderately limited. Tr. 83. In the section
explaining this limitation on concentration and persistence, Dr. Rivera wrote, “Clmt is
capable of performing tasks which are relatively static in nature. Limited d/t difficulty
focusing/concentrating caused by pain symptoms [sic].” Id. Dr. Rivera stated further that
“Clmt is capable of completing tasks in which changes are infrequent and can be explained.
Limited d/t difficulty focusing/concentrating caused by pain symptoms.” Id.
During the evidentiary hearing, the ALJ asked the vocational expert to assume a
hypothetical person who, inter alia, can complete routine, simple tasks that are static in
nature. Tr. 48-49. The vocational expert testified that this hypothetical person could not
perform Plaintiff’s past relevant work, but that this person could perform jobs such as
cleaner, packaging machine operator tender, and hand packager. Tr. 49. The vocational
expert also testified that those jobs exist in significant numbers in the national economy.
Id.
In her written decision, the ALJ determined that Plaintiff has the mental residual
functional capacity to perform jobs involving only routine tasks in which instructions can be
repeated as necessary, and involve only routine tasks which are static in nature, and in
which changes are infrequent and can be explained. In reaching this conclusion, the ALJ
credited Dr. Rivera’s opinion. Tr. 21. Specifically, the ALJ wrote:

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A psychologist who reviewed the record on behalf of the administration in June 2012
found that the claimant is capable of completing simple routine tasks in which
instructions can be repeated as necessary, and that he is limited due to difficulty
focusing and concentrating caused by pain symptoms. The reviewer found that the
claimant is capable of completing tasks which are relatively static in nature, and in
which changes can be explained. This opinion is consistent with the overall
treatment record and the credited portions of the claimant’s testimony, and is
accepted. It forms the basis for the finding made above concerning the claimant’s
psychological residual functional capacity level.
Tr. 21 (internal citations omitted).
The ALJ also discussed but did not assign any particular weight to Dr. Gronek’s
opinion:
Consultative psychological evaluation by Dr. Taylor Gronek, PsyD, in May 2012
yielded a diagnosis of adjustment disorder with depressed mood. Dr. Gronek listed
a GAF of 48 [sic]1 and concluded that the claimant would have difficulty with multistep instructions. Dr. Gronek also found that the claimant may show work pace
slower than other work peers but has no limitations in his ability to conform to social
expectations in a work setting or his ability to respond appropriately to work
pressures in a work setting.
Tr. 20.
As stated above, the ALJ relied on Dr. Rivera’s opinion and the vocational expert’s
testimony to conclude that Plaintiff has the mental RFC to perform several jobs that exist
in significant numbers in the national economy and therefore is not disabled under the
Social Security regulations. The Appeals Council denied Plaintiff’s request to review the
ALJ’s decision; thus the ALJ’s decision became the final decision of the Commissioner of
Social Security.

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This is an error by the ALJ. As Judge Litkovitz noted, Dr. Gronek actually assigned
Plaintiff a GAF of 68, which indicates that the subject has only mild symptoms or some
difficulty in functioning, but generally is functioning pretty well. Tr. 520.
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Plaintiff filed a timely complaint for judicial review of the ALJ’s decision. As is
relevant here, in his Statement of Specific Errors, Plaintiff alleged that the ALJ erred by not
explaining the weight she gave to Dr. Gronek’s opinion. The Commissioner responded that
any error was harmless since the ALJ’s reasoning can be discerned from her opinion.
Magistrate Judge Litkovitz disagreed, however, because she found that Dr. Gronek’s
opinion is inconsistent with the mental RFC adopted by the ALJ. Thus, Judge Litkovitz
recommended reversing the ALJ’s decision and remanding the case for further
proceedings. The Commissioner then filed timely objections to Judge Litkovitz’s report.
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

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recommendation regarding Social Security benefits claims. Ivy v. Secretary of Health &
Human Serv., 976 F.2d 288, 289-90 (6th Cir. 1992).
III. Analysis
The Court finds that the ALJ’s decision was supported by substantial evidence. In
contrast to Magistrate Judge Litkovitz, the Court concludes that the mental RFC adopted
by the ALJ is fully consistent with Dr. Gronek’s opinion and implicitly incorporates the
mental functional limitations indicated in her report. Consequently, any error that the ALJ
made in not stating the specific weight she assigned to Dr. Gronek’s opinion was a
harmless error.
Dr. Gronek was an examining psychologist and not Plaintiff’s treating psychologist.
But the ALJ’s failure to explain the weight given to the opinion of even a treating physician
will be a harmless error if the RFC she adopts incorporates the limitations indicated in the
treating physician’s opinion. Heston v. Commissioner of Soc. Sec., 245 F.3d 528, 536 (6th
Cir. 2001). In this case, Dr. Gronek did not indicate a specific functional limitation as
regards Plaintiff’s concentration, persistence and pace other than that he would work at a
slower pace than his peers. Tr. 521. Dr. Rivera, who concluded that Dr. Gronek’s opinion
was entitled to “great weight,” Tr. 80, interpreted Dr. Gronek’s report to mean that Plaintiff
is moderately limited in his ability to maintain concentration and persistence. Tr. 83. Dr.
Rivera further translated Dr. Gronek’s report to indicate that Plaintiff is capable of
performing jobs with relatively constant duties and in which changes can be explained to
him. Id. Given that Dr. Rivera decided that Dr. Gronek’s opinion is entitled to “great
weight,” it is clear that she provided the ALJ with specific functional limitations consistent
with Dr. Gronek’s opinion. Stated another way, having concluded that Dr. Gronek’s opinion
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was entitled to great weight, it would not make sense for Dr. Rivera to recommend
functional limitations that are inconsistent with Dr. Gronek’s opinion. Finally, since the
ALJ’s opinion is clear that she gave Dr. Rivera’s opinion controlling weight, Tr. 21, she
implicitly gave Dr. Gronek’s opinion the same weight as well.
Conclusion
In summary, the Court concludes that the mental RFC adopted by the ALJ was
consistent with Dr. Gronek’s opinion and further that the RFC adequately accounts for the
mental functional limitations suggested by Dr. Gronek’s report. Accordingly, the ALJ’s
failure to state the specific weight she gave to Dr. Gronek’s report and the reasons for that
decision was a harmless error.
Accordingly, the Commissioner’s objections to Magistrate Judge Litkovitz’s Report
and Recommendation are well-taken and are SUSTAINED. The Court does not adopt the
Report and Recommendation. The decision of the ALJ finding that Plaintiff is not disabled
under the Social Security regulations because he has the residual functional capacity to
perform several jobs that exist in significant numbers in the national economy is
AFFIRMED. THIS CASE IS CLOSED.

IT IS SO ORDERED

Date March 8, 2016

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

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