McLaughlin v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS that plaintiff's 10 Statement of Specific Errors be sustained to the extent that this case be remanded to the Commissioner for further proceedings pursuant to 42 USC §405(g), sentence four. Objections to R&R due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/14/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Christopher A. McLaughlin,
Plaintiff,

:
:

v.

:

Michael J. Astrue,
:
Commissioner of Social Security,
Defendant.

Case No.

2:11-cv-454

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Christopher A. McLaughlin, filed this action
seeking review of a decision of the Commissioner of Social
Security denying his applications for disability insurance
benefits and supplemental security income.

Those applications

were filed on July 19, 2006, and alleged that plaintiff became
disabled on April 1, 2006 due to mental impairments.
After initial administrative denials of his claim, plaintiff
was given a hearing before an Administrative Law Judge on January
20, 2010.

In a decision dated April 16, 2010, the ALJ denied

benefits.

That became the Commissioner’s final decision on March

25, 2011, when the Appeals Council denied review.
After plaintiff filed this case, the Commissioner filed the
administrative record on August 2, 2011.

Plaintiff filed his

statement of specific errors on August 24, 2011.

The

Commissioner filed a response on September 26, 2011.

Plaintiff

filed a reply on October 12, 2011, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff’s testimony at the administrative hearing is found
at pages 4 through 22 of the record.

Plaintiff, who was 28 years

old at the time of the hearing and is a high school graduate,

testified as follows.
After high school, plaintiff had some on-the-job training
with his uncle doing wood finishing, and he also served in the
Marines for almost two years.

He did work for a few days in 2008

stacking boxes at a factory but quit that job.
had worked as a laborer at a plastics plant.

Before 2006, he

He left that job

for reasons related to his psychological condition.

He also

worked in customer service at Kaufman’s, but was fired from that
job.
Plaintiff testified that he has had psychological
difficulties all of his life.

He believed his diagnoses included

bipolar disorder and an antisocial personality.

He had a history

of marijuana use but had attained sobriety about ten months
before the hearing.

He also has a tendency to get into fights

when he is around other people.

Other people make him nervous.

He takes a number of medications but needs to be reminded to do
so.
III.

The Medical Records

The medical records in this case are found beginning on page
244 of the administrative record.

They can be summarized as

follows.
Plaintiff was hospitalized in 2003 after taking an overdose
of prescription medications.

The discharge note indicated a

“profound history of substance abuse.”

He first sought mental

health treatment at age 14 or 15 and was treated for depression
and anger.

He was discharged from the Marines after being

described as a “treatment failure.”

He reported difficulty

concentrating in school and appeared to suffer from a conduct
disorder, an antisocial personality disorder, and both depressive
and manic episodes, as well as a history of abuse of various
drugs and alcohol, including dependence on marijuana and LSD.
was treated with Lithium, which relieved his mania.
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He was

He

directed to seek treatment from Netcare upon release.

(Tr. 246-

49).
Chronologically, the next medical record is a report of a
consultative examination performed for the Bureau of Disability
Determination in 2006.

Plaintiff reported his work history,

indicating that he was looking for work but that he was having
trouble leaving his house and that being around people was
stressful.

He admitted to being dependent on marijuana.

not taken Lithium for more that two years.
and he was focused to the interviewing.

He had

His memory was good

He admitted to being

hypersensitive, guarded and paranoid, and to carrying a weapon
with him at all times.

The examiner, Mr. Degli, diagnosed

cannabis dependence, a depressive disorder not otherwise
specified, and a paranoid personality disorder, and rated
plaintiff’s GAF at 45.

He thought plaintiff was not capable of

interacting with peers, supervisors, or the adult public in a
competitive work setting, and said that plaintiff’s ability to
maintain attention, concentration, persistence and pace was
“nil,” as was his ability to withstand the stresses and pressures
of a competitive workplace.

(Tr. 255-58).

As plaintiff had testified, he received some substance abuse
counseling in 2006 from Community Solutions Association.

His

psychological problems included oppositional behavior,
inattention, impulsivity, and disturbed reality contact.

That

facility diagnosed him with cannabis dependence and borderline
personality disorder, with a rule out diagnosis of PTSD.

After

an initial assessment he was accepted into a dual diagnosis
program.

However, as of January, 2007, there did not appear to

be any treatment notes from such a program.

(Tr. 264-75).

A state agency reviewer, Dr. Finnerty, reviewed the records
and reported on January 16, 2007 that they indicated the presence
of an affective disorder, a personality disorder, and a substance
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abuse addiction disorder.

The affective disorder appears to have

been characterized as mild, but the personality disorder included
inflexible and maladaptive personality traits evidenced by
pathologically inappropriate suspiciousness or hostility.

These

disorders caused moderate restrictions in activities of daily
living, in maintaining social functioning, and in maintaining
concentration, persistence and pace, but had not caused any
episodes of extended decompensation.

They did not affect

plaintiff’s ability to understand and carry out short and simple
instructions or to sustain an ordinary routine without special
supervision, but they did limit his ability to get along with
others and to complete a workday or work week without
interruptions from his symptoms and to perform at a consistent
pace.

Dr. Finnerty explained that the more negative assessment

from the consultative examiner appeared not to take into account
the impact of plaintiff’s chronic substance abuse and the fact
that he showed rapid improvement when treated with medications or
when remaining sober.

He thought plaintiff could do simple

repetitive tasks in settings with superficial contact with others
and without fast paced production quotas.

(Tr. 277-94).

That

conclusion was later affirmed by another reviewer, Dr.
Casterline.
The next group of records come from Valley Counseling, where
plaintiff sought treatment after he found the substance abuse
counseling provided by Community Solutions to be ineffective.
Those records show that plaintiff was admitted to counseling on
February 27, 2007 with a diagnosis of a mood disorder and a GAF
of 50.

He reported difficulty sleeping and dealing with others.

He also had trust issues and reported hearing voices, although he
denied it was other people’s voices he was hearing.

There is

only one treatment note from 2007, and it does little more than
repeat the diagnoses and indicate what medication was prescribed.
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(Tr. 341-57).
Finally, the file contains some counseling notes from Six
County, Inc. dated in 2008 and 2009.

Collectively, they show

that plaintiff’s mood improved slightly with medication, that he
was still drinking occasionally, that he was depressed, angry and
paranoid, that he did report hallucinations and hearing voices,
that he had fleeting thoughts of suicide, that his marijuana
intake had gradually been reduced (although he was having some
withdrawal symptoms), that he spent 70 days in jail, and that he
was going to be started on new medications.
IV.

(Tr. 361-78).

The Vocational Testimony

Mr. Kiger, a vocational expert, also testified at the
administrative hearing.

His testimony begins at page 25.

He

noted that plaintiff had worked as an inspector, a customer
service representative, and a general laborer.

The jobs were

either light or medium, and either unskilled or semi-skilled.

If

he were limited as described in Exhibit 8F, the evaluation done
by Dr. Finnerty, the only job he might be able to return to would
be the laborer job, and that would depend upon how much he had to
interact with others.

His specific testimony on this point was

that he did not know enough about plaintiff’s past laborer job to
judge how much interaction with others it required, but that in
“[s]ome laborer positions you’re pretty much on your own.

You

may have another person or two that are in the vicinity, but
they’re not right next to you.
positions.”

(Tr. 27).

I mean, they vary, those type of

If, however, plaintiff was limited to the

extent he stated in his testimony, he could not work.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 41
through 51 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that plaintiff
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met the insured requirements of the Social Security Act through
September 30, 2010.

Next, he found that plaintiff had not

engaged in substantial gainful activity from his alleged onset
date of April 1, 2006 through the date of the decision.

As far

as plaintiff’s impairments are concerned, the ALJ found that
plaintiff had severe impairments including personality disorder
with paranoia, borderline and anti-social features, substance
abuse disorder currently in early remission, post traumatic
stress disorder, and depression.

The ALJ also found that these

impairments did not meet or equal the requirements of any section
of the Listing of Impairments (20 C.F.R. Part 404, Subpart P,
Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that plaintiff had the residual functional
capacity to perform a full range of work at all exertional levels
and could do simple to more complex tasks, was able to
concentrate when not abusing alcohol or drugs, and had what the
administrative decision described as a “marked ability to work
and deal with people secondary to his personality disorder as
complicated historically by the abuse of drugs.”

(Tr. 45).

He

could handle low stress work without high production standards if
he refrained from substance abuse.

The ALJ accepted the

vocational expert’s testimony that someone with such limitations
could perform plaintiff’s past work as a general laborer.

As a

result, the ALJ concluded that plaintiff had not demonstrated an
entitlement to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, plaintiff raises the
following issues.

First, he argues that the ALJ erred by posing

an incomplete hypothetical to the vocational expert and by
substituting his own lay opinion for that of the expert.

He also

argues that the ALJ should have found that his impairment met
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Section 12.08 of the Listing of Impairments, which deals with
personality disorders.

The Court reviews the administrative

decision under this legal standard:
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

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) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
Plaintiff’s first argument, as described in his statement of
errors and in the reply brief, can be summarized as follows.

The

hypothetical question posed to the vocational expert asked him to
assume that plaintiff’s limitations were those described in
Exhibit 8F, the residual functional capacity form completed by
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Dr. Finnerty, the state agency reviewer.

In response, the

vocational expert expressed some hesitancy, couching his answer
in terms of possibilities.

After the hearing, in the

administrative decision, the ALJ found that plaintiff suffered
from a “marked” impairment in his ability to maintain social
functioning, which is a different finding on that subject from
that contained in Exhibit 8F.

Because the vocational expert

never answered a question which asked him to assume that
particular limitation, plaintiff argues that the ALJ could not
properly rely on the vocational expert’s testimony in terms of
whether he could return to his prior job as a laborer.
The Commissioner counters this argument by noting that
despite the difference in Dr. Finnerty’s assessment of
plaintiff’s abilities in the area of social functioning and the
ALJ’s assessment, the ALJ made it clear that he concluded that
plaintiff could still perform work which required only
superficial interaction with others.

Because that was also Dr.

Finnerty’s conclusion, the Commissioner argues that there was no
material discrepancy between the question which the vocational
expert answered and any question which would have been based on
the ALJ’s findings, so that his testimony was a reliable basis on
which to conclude that plaintiff could do his past relevant work.
There is little question that this is not a perfect
administrative record.

In fact, it appears that the

administrative decision incorrectly substituted the word
“ability” for the word “inability” in the key finding about
plaintiff’s limitations in the area of working and dealing with
people; the finding that plaintiff had a marked “ability” in this
area makes no sense, since the adjective “marked” applies only to
inabilities and not abilities.

Further, the ALJ, in using the

modifier “marked,” was presumably referring to that category of
limitation as it is described in the applicable regulation,
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which, in this case, is found in the preamble to Section 12.00 of
the Listing of Impairments.

There, a marked limitation in any

area is described as one which is “more than moderate but less
than extreme” and which reflects a “degree of limitation [which]
interfere[s] seriously with your ability to function
independently, appropriately, effectively, and on a sustained
basis.”

In the area of maintaining social functioning, that

preamble notes that no specific set of behaviors is encompassed
by the definition, but, as an example, someone who is “highly
antagonistic, uncooperative, or hostile” may have a marked
impairment in social functioning even if such behavior is
tolerated by some people because it is “not acceptable in other
social contexts.”

Given this definition, it is somewhat

confusing that the ALJ found that the only specific restriction
on plaintiff’s work abilities due to his “marked” limitation was
the need to avoid jobs which required “high levels of personal
interaction.”

(Tr. 44).

That is either equivalent to, or less

restrictive than, Dr. Finnerty’s conclusion that plaintiff could
perform work “in settings with superficial interactions with
others,” Tr. 294, yet Dr. Finnerty rated plaintiff’s impairment
in the area of maintaining social functioning as only moderately
limited rather than marked.

This internal inconsistency suggests

that a remand for clarification, rather than an affirmance
despite the evident inconsistency in the ALJ’s findings, is
warranted.
In addition to this inconsistency, there are other troubling
aspects about the way in which the ALJ dealt with plaintiff’s
social interaction limitations.

For example, Dr. Finnerty’s

views about plaintiff’s limitations in the area of social
functioning, and his rejection of the consultative examiner’s
more pessimistic view, appears to be based in part on a
comparison of plaintiff’s abilities with or without consideration
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of his substance abuse.

That is, Dr. Finnerty stated that the

consultative examiner “appears to ignore any possible impact from
the [claimant’s] chronic substance use.”

(Tr. 294).

He made the

same comment about plaintiff’s depression and manic episodes and
noted that his other “characterological concerns” were overlaid
“on top of serious substance abuse dependence as a factor in
[plaintiff’s] difficulties.”

Id.

Nevertheless, pointing out

that plaintiff had improved rapidly with treatment in the past,
Dr. Finnerty then reached his own conclusions about plaintiff’s
work capabilities, although it is not entirely clear whether
those conclusions reflect how well plaintiff could perform if he
stopped his substance abuse, or with his substance abuse.
Similarly, the ALJ’s decision is replete with reference to
substance abuse, but not clear on how the ALJ’s views of
plaintiff’s substance abuse problems factored into the ultimate
decision, notwithstanding the regulatory mandate that in a case
where substance abuse is present and may be disabling, the
Commissioner must determine if substance abuse is a “contributing
factor material to the determination of disability” and “whether
we would still find you disabled if you stopped using drugs or
alcohol.”

20 C.F.R. §404.1535.

Additionally, the vocational expert’s testimony was, as
plaintiff points out, phrased in terms of possibilities, clearly
reflected a lack of information about the specific laborer job
plaintiff performed, and, at best, supported a finding that the
degree of personal interactions in such jobs varies, and that
there are some in which “you are pretty much on your own.”

It is

not entirely clear whether this fairly imprecise description of
such jobs comports with either Dr. Finnerty’s or the ALJ’s
description of plaintiff’s social interaction limitations.

A

remand will assist in resolving these conflicts and ambiguities
and produce a decision much more susceptible to meaningful
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judicial review.

Cf. McHugh v. Astrue, 2011 WL 6130824, *9 (S.D.

Ohio Nov. 15, 2011), adopted and affirmed 2011 WL 6122758
(S.D.Ohio Dec. 8, 2011)(“‘“[W]here the ALJ's decision ... is so
poorly articulated as to prevent meaningful review, the case must
be remanded.’”), quoting Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002).
Plaintiff has also raised an issue about whether the ALJ was
required to find, in accordance with the consultative examiner’s
opinion, that he met the requirements for disability set forth in
Section 12.08 of the Listing of Impairments.

Plaintiff

criticizes the ALJ for crediting the opinion of Dr. Finnerty
instead and for failing to give adequate reasons why more weight
was assigned to Dr. Finnerty’s opinion even though he never
examined the plaintiff.
Although the “good reasons” rule found in 20 C.F.R.
§404.1527(d) does not apply to the opinions of non-treating
sources, such opinions must be considered by an ALJ, and the
failure to discuss them at all can be grounds for a remand.

See,

e.g., Karger v. Comm’r of Social Security, 414 Fed. Appx. 739
(6th Cir. February 10, 2011).

The ALJ did discuss the

consultative examiner’s findings, however, indicating that he
took them into account but gave them little weight due primarily
to the fact that Mr. Degli did not separate out the impact of
plaintiff’s substance abuse from the impact of his other
impairments.

However, that is not necessarily the correct way to

treat such an opinion if it is otherwise credible; rather,
§404.1535 seems to suggest that the ALJ should make findings
about disability taking into account, as Mr. Degli did, the
impact of substance abuse, and, if that led to a finding of
disability, determining the extent to which plaintiff remained
impaired without consideration of his substance abuse.
procedure was not followed here.

That

Consequently, while the Court

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cannot find that the ALJ was absolutely required to adopt Dr.
Degli’s findings and to determine that plaintiff actually
qualified for benefits under Section 12.08 of the Listing, it
would appear that on remand the ALJ should articulate more
clearly if he credited the examiner’s opinions and then
subtracted the impact of plaintiff’s substance abuse, or whether
he did not credit Dr. Degli’s findings; if the latter is so,
there should be enough of an explanation for why that occurred so
that the Court can perform the required substantial evidence
review, even if the ALJ need not provide the same amount of
reasoning as when rejecting the opinion of a treating source.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be sustained to the extent that
this case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. §405(g), sentence four.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.

Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence
or may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
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waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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