Doles v. Commissioner of Social Security

Filing 23

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 21 . This case is DISMISSED. Judgment to enter for defendant. Signed by Judge James L Graham on 6/7/11. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lynn A. Doles,

:

Plaintiff,

:

v.

:
:

Commissioner of Social
Security,
Defendant.

Case No. 2:10-cv-521
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:
OPINION AND ORDER

On April 13, 2011, the Magistrate Judge issued a Report and
Recommendation recommending that the statement of errors filed by
plaintiff Lynn A. Doles be overruled and that judgment be entered
in favor of the defendant Commissioner of Social Security.

That

would result in the Court’s affirming a final decision of the
Commissioner denying plaintiff’s applications for a period of
disability and social security disability benefits and for
supplemental security income.

Plaintiff filed objections to the

Report and Recommendation on April 19, 2011.
has not filed a response.

The Commissioner

For the following reasons, the

objections will be overruled and judgment will be entered in
favor of the defendant.
I.
Plaintiff was, under Social Security regulations and up
until her last insured date of December 31, 2008, a “younger
individual” who has a high school education and had done some
college work.

She had been employed in the juvenile detention

field and also as a counselor for sex offenders.
working in 2004 due to medical problems.

She stopped

According to the

Administrative Law Judge’s decision, those problems included
degenerative disc disease status post fusion at C5-7, depression,
anxiety, fibromyalgia, and obesity.

However, the ALJ found that

she had the physical ability to do sedentary work as long as the
working environment did not entail a high amount of stress, and
he found, consistent with a vocational expert’s testimony, that
she could do jobs such as cashier, general office clerk, and food
and beverage order clerk.
In her objections, plaintiff does not take issue with the
ALJ’s evaluation of her physical capabilities.

Rather, she

contends that his failure to find that she suffered from a
somatoform disorder was prejudicial error, and that the conduct
of the ALJ during the video hearing reinforces the notion that he
was not able to arrive at an impartial decision on her claim.
The Court’s review is limited to these specific objections.
review of the objections is de novo.

Its

Redding v. Commissioner of

Social Sec., 2010 WL 3719265 (S.D. Ohio September 15, 2010)
(Graham, J.).
II.
A somatoform disorder is described in Section 12.07 of the
Listing of Impairments, as follows:
12.07 Somatoform Disorders. Physical symptoms for
which there are no demonstrable organic findings or
known physiological mechanisms.
The required level of severity for these disorders
is met when the requirements in both A and B are
satisfied.
A.
Medically documented by evidence of one of
the following:
1. A history of multiple physical symptoms of
several years duration, beginning before age 30, that
have caused the individual to take medication
frequently, see a physician often and alter life
patterns significantly; or
2. Persistent nonorganic disturbance of one or
the folowing:
a. Vison; or
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b.
c.
d.
e.
f.

Speech; or
Hearing; or
Use of a limb; or
Movement and its control ...; or
Sensation(e.g. diminished or heightened).

3. Unrealistic interpretation of physical signs
or sensations associated with the preoccupation or
belief that one has a serious disease or injury;
AND
B.

Resulting in at least two of the following:

1. Marked restriction of activities of daily
living;
2. Marked difficulties in maintaining social
functioning;
3. Marked difficulties in maintaining
concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of
extended duration.
The ALJ did not find that plaintiff had a severe somatoform
disorder.

The ALJ who decided the case reached this conclusion

despite the fact that a different ALJ had sought an opinion from
a consultant, Dr. Snyder, who concluded that plaintiff’s
psychological impairments (including her somatoform disorder and
her affective disorder) met the requirements of both Section
12.04 (which deals with affective disorders such as depression)
and Section 12.07.

Dr. Snyder stated that plaintiff had marked

impairments both in her activities of daily living and in her
ability to sustain concentration, persistence and pace.

If the

ALJ had adopted those findings, two of the four “B” criteria
under Listing 12.07 (as well as under Listing 12.04, because the
“B” criteria are the same for both of these sections) would have
been present, and plaintiff would have been entitled to benefits.
Instead, the ALJ found that plaintiff had only mild restrictions
in her activities of daily living because she could clean, cook
and shop, and that no mental status examination had shown that

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she suffered from a marked impairment in concentration,
persistence or pace.

Although he analyzed the issue solely under

the Listing applicable to depression and did not find that
plaintiff had a somatoform disorder, as noted, the criteria to be
analyzed are the same for both.
The Report and Recommendation dealt with this issue by
determining, first, that it may have been error for the ALJ to
fail to find a severe somatoform disorder because, as plaintiff
argued, virtually every treating source thought that her
complaints of physical limitations were out of proportion to the
medical findings and that she was unduly preoccupied with her
physical condition, which are the hallmarks of a somatoform
disorder.

Nonetheless, the Report and Recommendation recognized

that “the more important question is whether [the ALJ’s]
conclusion that she had not satisfied the ‘B’ criteria - which
apply equally to the condition he did recognize, depression, and
the one he did not - finds substantial support in the record.”
Report and Recommendation, Doc. #21, at 10.

If the ALJ, who was

required to take into account both severe and non-severe
impairments, would have made the same finding even if he had
recognized the somatoform disorder as severe, and if that finding
had substantial support in the record, then any error in failing
to identify the somatoform disorder as a separate impairment
would indeed be harmless error.
In her objections, plaintiff advances several arguments why
the ALJ was not entitled to find that Dr. Snyder’s opinion could
be discounted.

She notes that, contrary to the ALJ’s and the

Magistrate Judge’s conclusion that Dr. Snyder did not cite any
specific evidence in support of his opinion, he referred both to
a report from Dr. Marrie and one from Dr. Freeman, the latter of
who was plaintiff’s pain management physician.

Apparently, she

argues that the fact that Dr. Snyder did review other records
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required the ALJ to accept his opinion as to her limitations.
The complete report from Dr. Marrie, which appears at Tr.
256-64, deals with an examination done in October, 2005, for
purposes of evaluating whether plaintiff suffered from multiple
sclerosis.

Dr. Marrie, who is not a psychologist or

psychiatrist, specifically stated in her report that plaintiff’s
mental status was not formally assessed and that “there was no
obvious evidence of cognitive dysfunction during the interview
and examination.”

(Tr. 259).

Dr. Marrie did not believe that

plaintiff had MS, but she did recommend aggressive treatment for
anxiety as well as a follow-up for gastroparesis, urinary
retention, and visual complaints.

Nothing in her report

addresses either activities of daily living or concentration,
persistence, and pace, much less whether any deficits in those
areas might be the result of a somatoform disorder or any other
kind of psychological impairment.
Dr. Freeman, to whom Dr. Snyder also referred, commented in
one of his examination notes that plaintiff had complaints of
pain out of proportion to physical findings and that she had very
poor coping strategies for dealing with pain.

(Tr. 331).

This

is one of the records which should have led the ALJ to find that
plaintiff had a severe somatoform disorder.

However, it, too,

did not address any issues about either activities of daily
living or problems with concentration, persistence and pace.

Dr.

Snyder may have felt justified in reaching his conclusions about
the extent of plaintiff’s impairment from reviewing these
records, but the ALJ was equally entitled to reject those
conclusions both because the evidence relied on by Dr. Snyder
appears insufficient to support his ultimate conclusions, and
because there is other, contradictory evidence in the record
which supported the ALJ’s finding of a lesser degree of
impairment.

Further, Dr. Snyder was not a treating or examining
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source, and the ALJ was not required either to give controlling
weight to his opinion or to articulate a specific rationale for
rejecting it (nor does plaintiff base her argument on the failure
to do so).

For these reasons, the Court, after reviewing the

issue de novo, concludes that the ALJ’s error in not
characterizing plaintiff’s somatoform disorder as severe was
harmless.

If the ALJ had considered it to be a severe disorder,

he would not have found that it limited plaintiff any more than
her depression (which he did find to be severe) did, and he would
not have concluded that she met the "B' criteria of Section 12.07
of the Listing of Impairments, because they are the same for both
types of disorders.

He would also have found her able to do the

jobs identified by the vocational expert, so that the failure to
characterize the somatoform disorder as severe ultimately had no
impact on the administrative decision.
The Court does, as reflected in the Report and
Recommendation, share, to some extent, plaintiff’s concern about
the way in which the ALJ conducted the hearing.

However,

plaintiff did not raise a specific issue about that in her
statement of errors, nor has she argued it as an independent
basis for reversal or remand.

The Court also agrees that it does

not appear ultimately to have affected the ALJ’s resolution of
the case, which, as the Court has found, is based on substantial
evidence in the record.

Because that is so, the Court must

affirm the Commissioner’s decision.

Ealy v. Comm’r of Social

Security, 594 F.3d 504, 512 (6th Cir. 2010)
III.
For all of these reasons, and after a de novo review of
those portions of the Report and Recommendation to which
plaintiff objected, the Court OVERRULES the objections (#22) and
ADOPTS AND AFFIRMS the Report and Recommendation (#21).

The

plaintiff’s statement of specific errors (#14) is OVERRULED and
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this case is DISMISSED.

The Clerk is directed to enter judgment

in favor of the defendant.
IT IS SO ORDERED.
s/James L. Graham
JAMES L. GRAHAM
United States District Judge

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