Swanson v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS that 11 Statement of Specific Errors be overruled & that judgment be entered in favor of the Commissioner. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 6/19/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Tonya L. Swanson,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-1100

:
Commissioner of Social Security,
Defendant.

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Tonya L. Swanson, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for supplemental security income.

That

application was filed on April 29, 2008 and alleged that
plaintiff became disabled on April 1, 2008.
After initial administrative denials of her application,
plaintiff was given a hearing before an Administrative Law Judge
on October 28, 2010.

In a decision dated December 10, 2010, the

ALJ denied benefits.

That became the Commissioner’s final

decision on October 25, 2011, when the Appeals Council denied
review.
After plaintiff filed this case, the Commissioner filed the
administrative record on February 14, 2012.

Plaintiff filed her

statement of specific errors on March 15, 2012.
filed a response on May 10, 2012.

The Commissioner

No reply brief was filed, 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 10 through 29 of the record.

Plaintiff, who was 44

years old at the time of the hearing and attended school through
the ninth grade (at times in special education classes),

testified as follows.
Plaintiff has never worked.

She testified she has never

been able to work because of her physical condition.

She had one

job in 2000, working as a housekeeper for a nursing home, but was
fired after a week.

She believed her most limiting conditions

were depression and problems with her feet, back and arms.

Some

of her problems are caused by diabetes.
Plaintiff never suffered a back injury, but has pain in her
lower back.

She became depressed after her father died, which

happened when she was twelve.

She still takes medication for

depression and anxiety, and had been seeing a counselor once a
month prior to having some surgery.

Even with medication, she

testified that she has four bad days a week when she is upset and
crying.
From a physical standpoint, plaintiff cannot stand for long
periods of time due to pain in her legs.

She can sit for longer

periods, but would have trouble with any job requiring reading.
She also has difficulty getting along with people.
to shop for groceries and handle money.
house.

She is able

She cleans her own

She has no friends to socialize with and no

transportation, but would visit her mother if she could.

On a

daily basis she generally listens to the radio.
III.

The Medical Records

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

The pertinent records can be

summarized as follows.
The first exhibit in the file, Exhibit 1F, is an assessment
of mental capacity done for the Ohio Department of Job and Family
Services by Dr. Paugh, plaintiff’s treating psychologist.
appears to have been completed some time in 2007.
concluded that plaintiff was unemployable.

It

Dr. Paugh

Part of the form

records his observations, including the fact that she was tearful
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throughout the interview.

The form also indicates that obesity

and diabetes were likely to be significant impairments, and that
plaintiff had a marked limitation in her ability to complete a
workday or workweek or to get along with others.

(Tr. 233-37).

Dr. Paugh completed a similar form which appears as part of
Exhibit 3F (Exhibit 2F is a large collection of office notes,
most of which contain little information about plaintiff’s
conditions, symptoms or limitations), and which indicates a
similar set of limitations.

(Tr. 289).

Several years later, in

2010, he again assessed her functional capacity as including a
number of marked limitations.

(Tr. 368-70).

The narrative

support for this evaluation is also similar.
Plaintiff was evaluated by Dr. Donaldson, a consultative
examiner, on June 25, 2008.

He noted that she was agitated and

intimidated by the process, but was cooperative in the
evaluation.

She did relax as the interview progressed.

reported difficulty sleeping and daily crying spells.

She

She also

described frequent mood swings and diminished interest in
activities.

Dr. Donaldson diagnosed a depressive disorder and an

anxiety disorder as well as a panic disorder without agoraphobia,
and rated plaintiff’s GAF at 50-55.

The only psychological

limitations he noted were a moderate impairment in the ability to
attend to relevant stimuli, to relate to others, and to withstand
the stress and pressure of regular work activity.

He appears to

have taken her report of chronic pain into account in making his
assessment.

(Tr. 292-95).

The next assessment was done by Dr. Pawlarczyk, a state
agency reviewer (Exhibit 5F).

He completed a form which, because

it is the subject of one of plaintiff’s two assignments of error,
will be described in some detail.
The form is a standard one used by the Social Security
Administration.

Part I is entitled “Summary Conclusions,” and
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asks the reviewer to evaluate a number of different mental
activities which a claimant can sustain over a workday or
workweek, rating their severity from “Not Significantly Limited”
to “Markedly Limited” (there are also options to indicate that
there is either no evidence of such limitations or that they
cannot be rated on the basis of the available evidence).

The

instructions also tell the reviewer to provide a “[d]etailed
explanation of the degree of limitation for each category” in
Section III of the form, which is entitled “Functional Capacity
Assessment.”
In the first section, Dr. Pawlarczyk noted the following
moderate limitations in eight work-related activities:
understanding and remembering detailed instructions, carrying out
detailed instructions, performing activities on a regular
schedule and being punctual, completing a workday and work week
without interruptions from psychologically-based symptoms,
interacting appropriately with the general public, accepting
criticism or instructions from supervisors, getting along with
co-workers, and responding appropriately to changes in the work
setting.

He then completed Section III, the Functional Capacity

Assessment, in narrative form, noting first that plaintiff’s
statements about her psychological problems “appear credible in
nature, not in limitation.”

He summarized the results of Dr.

Donaldson’s evaluation and gave “weight” to his opinions,
repeating the limitations reported by Dr. Donaldson.

He then

concluded that “[t]he clmt would likely work best performing
simple, repetitive tasks in a static environment with less
frequent interaction with others.”

On another form, he indicated

that the disorders he evaluated included an affective disorder,
borderline intellectual functioning, and an anxiety and panic
disorder.

Using the “B” criteria of the Listing of Impairment,

he also rated plaintiff’s degree of limitation in four areas,
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finding moderate limitations in the areas of maintaining social
functioning and maintaining concentration, persistence and pace.
(Tr. 297-314).

Dr. Swain, another state agency reviewer,

affirmed this assessment.

(Tr. 337).

Dr. Neiger, a state agency physician reviewer, completed an
assessment form relating to plaintiff’s physical condition.

She

described the conditions she took into account as diabetes,
obesity, heel spurs, and plantar fasciitis.

Generally, she found

that plaintiff could do medium work, but could never climb
ladders, ropes or scaffolds.

(Tr. 338-45).

That evaluation

conflicts with one done by plaintiff’s treating physician, Dr.
Russell, who limited plaintiff to a total of seven hours of
standing, walking and sitting in a work day.

Dr. Russell also

said that plaintiff’s emotional stress was likely the most
limiting condition from which she suffered.

(Tr. 364-65).

The remainder of the medical records are notes of treatment
and some hospital records.

None of them appear to contain any

information which was significant to the ALJ’s decision, or which
is relied on by the parties in their memoranda.
IV.

The Vocational Testimony

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

His testimony begins at page 30 of the

administrative record.

He agreed that plaintiff had no relevant

past work history.
Mr. Brown was asked some questions about a hypothetical
person who was 44 years old and had plaintiff’s education and
work experience.

Additionally, that person had the physical and

mental work abilities reflected in Exhibits 5F and 10F, which are
the evaluations done by the state agency reviewers.

Mr. Brown

testified that such a person could do a at least half of all
medium unskilled jobs, including jobs such as kitchen attendant
or office cleaner.

He based his testimony on the assumption that

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the person could do simple, repetitive tasks in a static
environment and could interact with others on a less than
frequent basis.

However, if the person were as limited as Dr.

Paugh stated in his reports, that person could not work due to
the number and type of marked restrictions he noted.

The same

would be true if the person were limited to less than sedentary
work, but if the limitation were simply to sedentary work, along
with the mental restrictions discussed earlier in his testimony,
Mr. Brown stated that such a person could do half of the
unskilled sedentary jobs in the region, or approximately 2,500
jobs.

Finally, a person who was off task for 20 to 25 percent of

the workday could not work competitively.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 41
through 54 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that plaintiff
has never met the insured requirements of the Social Security Act
for purposes of disability benefits.

Next, he found that

plaintiff had not engaged in substantial gainful activity from
her alleged onset date of April 1, 2008 through the date of the
decision.

As far as plaintiff’s impairments are concerned, the

ALJ found that plaintiff had severe impairments including
insulin-dependent diabetes mellitus with retinopathy,
degenerative disc disease of the cervical spine, obesity,
depressive disorder, anxiety disorder, and borderline
intellectual functioning.

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

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capacity to perform a limited range of work at the medium
exertional level, but that she could never climb ladders, ropes
or scaffolds.

Also, she had nonexertional limitations which

restricted her to the performance of simple, repetitive tasks in
a static work environment with infrequent interaction with
others.

The ALJ accepted the vocational expert’s testimony that

someone with such limitations could perform approximately 20,000
unskilled medium jobs in the regional economy.

As a result, the

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

Plaintiff’s Statement of Specific Errors

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

First, plaintiff argues that the ALJ based his

findings on incomplete answers to a hypothetical question;
specifically, on testimony from the vocational expert which did
not take into account a number of moderate psychological
limitations, based on the expert’s statement that he did not know
what “moderate” meant.

Second, plaintiff argues that the ALJ

improperly discounted the opinions of her treating physicians and
improperly credited the opinions of the state agency reviewers.
The Court generally reviews the administrative decision of a
Social Security ALJ 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

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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 assignment of error assumes the accuracy
of Dr. Pawlarczyk’s opinion, but takes issue with the way in
which either the ALJ or the vocational expert interpreted it.

As

plaintiff notes, that opinion including findings that plaintiff
had a number of moderate limitations in her ability to perform
work-related activities, including, among others, the ability to
complete a normal workday and work week without interruption from
psychologically-based symptoms.

Plaintiff argues that the short

narrative description provided elsewhere in Dr. Pawlarczyk’s
report, and which was incorporated into the hypothetical question
asked of Mr. Brown, did not accurately capture all of these
limitations.

When her counsel asked Mr. Brown if someone who was

off task 20-25% of the time could work, Mr. Brown said that she
could not.

Based on this answer, plaintiff contends that had

these moderate limitations been correctly incorporated into the
question posed by the ALJ, Mr. Brown’s response about available
jobs would have been different, so that it was error for the ALJ
to have relied on Mr. Brown’s testimony in finding that plaintiff

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was not disabled.

As primary support for this argument,

plaintiff relies on the decision in Ealy v. Comm’r of Social
Security, 594 F.3d 504 (6th Cir. 2010).
Ealy was a case in which the ALJ adopted the opinion of a
state agency reviewer who concluded, on Section I of the
evaluation form, that the claimant was moderately limited in
eight work-related categories (the same number as in this case),
most of which are the same limitations which Dr. Pawlarczyk
found.

In Section III, the reviewer noted that the claimant

could understand and remember simple instructions, do simple
repetitive tasks in two-hour segments as long as pace was not of
critical importance, work in a non-public setting, and adapt to
routine changes in the workplace.

The ALJ translated this

information into a hypothetical question which asked the
vocational expert to assume that the claimant was limited to the
performance of simple repetitive tasks and instructions in a nonpublic work setting.

On appeal, the claimant contended that the

question did not accurately incorporate all of the limitations
which appeared in the state agency reviewer’s report.
The Court of Appeals found merit in this argument.

The

decision noted that the “streamlined” hypothetical question made
no mention of the fact that, according to the reviewer’s comments
in Section III of the form, the claimant could only work in twohour segments and that speed and pace could not be critical job
requirements.

Because of this discrepancy between the functional

capacity outlined by the reviewer and the question posed to the
vocational expert, the Court of Appeals held that a remand was
required.
This case differs from Ealy in one very important respect.
In both cases, it was the functional capacity rating in Section
III of the report which the ALJ credited as accurately describing
the claimant’s psychological limitations.

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However, in Ealy, the

ALJ simply failed to incorporate important parts of that
functional capacity rating into the hypothetical question posed
to the vocational expert.

Here, by contrast, Dr. Pawlarczyk

explicitly set forth, in narrative form, exactly how he believed
that the moderate impairments he noted in Section I of the form
impacted plaintiff’s ability to work.

The ALJ and the vocational

expert adopted that statement of functional capacity in its
entirety.

Thus, there was no discrepancy between the reviewer’s

findings in Section III and the hypothetical question posed to
Mr. Brown, and this difference distinguishes this case from Ealy.
Because the facts differ between the two cases, plaintiff’s
argument here is actually quite different from the one made in
Ealy.

Essentially, plaintiff contends that Dr. Pawlarczyk

himself did not correctly translate his findings from Section I
of his report into the conclusions he drew in Section III.
there is no support for that argument.

But

Presumably, Dr.

Pawlarczyk was well aware of his findings that plaintiff had
moderate limitations in various areas, including dealing with the
normal stress of everyday work.

He apparently accommodated that

restriction by limiting plaintiff to a “static” work environment
and to simple repetitive tasks.

He did not, as did the reviewer

in Ealy, make any comments about the need to segment the work day
or to perform tasks where pace or speed were not critical.

It

can hardly be error for the ALJ to accept the state agency
reviewer’s conclusions as to functional capacity just as that
reviewer stated them, nor would it have been appropriate for the
ALJ to second-guess what amounts to a medical judgment in that
area.

Because no Ealy-type error occurred here, plaintiff’s

first assignment of error provides no basis for a remand.
Next, plaintiff argues that the ALJ did not have adequate
reasons for accepting the opinions of the state agency reviewers
as opposed to the opinions of her treating psychologist and

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physician.

As noted above, both Dr. Paugh and Dr. Russell

described limitations which, if accepted, would preclude work
either from a physical or psychological standpoint.

Citing to

well-established case law and regulations (see, e.g., Harris v.
Heckler, 756 F.2d 431 (6th Cir. 1985) and 20 C.F.R. §404.1527(d))
which mandate that, absent good reasons to the contrary, the
opinions of treating sources must be afforded either controlling
or significant weight, plaintiff argues that the ALJ erred by
relying on the alleged absence of treatment notes as a basis for
discounting the opinions of the treating sources.

More

specifically, she contends that the record contains a large
number of treatment notes from both Dr. Paugh and Dr. Russell
(and, of course, none from the state agency reviewers), and that
the ALJ incorrectly cited the scarcity of treatment notes as
support for his decision to give greater weight to the views
expressed by Dr. Pawlarczyk and Dr. Neiger.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(d); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).

However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

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Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
Here, as the Commissioner correctly notes, the fact that the
record contains a large number of documents which were generated
by plaintiff’s visits to Dr. Paugh or Dr. Russell does not
necessarily mean that there is any information in those notes
which explains why either treating source viewed plaintiff as
disabled.

Here is how the ALJ discussed and resolved this issue.

The three physical conditions which the ALJ recognized (and
plaintiff, in her statement of errors, does not argue for any
additional conditions) were diabetes, cervical disc disease, and
obesity.

According to the ALJ, the first condition was often

described as “controlled” and was being effectively treated by
oral medication and insulin.

Her retinopathy had developed only

recently, and there was no evidence.

Plaintiff’s cervical spinal

condition was described in 2010 as moderate, and only mild
tenderness was noted on examination.

She had not undergone any

treatment for this condition before that date.

Lastly, there was

no evidence that her obesity (her highest recorded weight seems
to have been 294 pounds; she is 5'4" tall) “caused significant
difficulty with mobility or serious complications involving other
body systems.”

(Tr. 49).

The ALJ noted that Dr. Russell had

imposed relatively severe restrictions on plaintiff’s ability to
do many physical activities, but stated that none of the
treatment records supported these limitations.

The ALJ concluded

that such restrictions either came from plaintiff’s own selfreported symptoms, without medical evidence to back them up, or

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had no support at all in the medical records - that is, there
were simply no physical conditions identified which would account
for such severe restrictions.
The Court agrees with the Commissioner that the ALJ used a
valid basis for discounting the opinion of a treating physician.
In fact, the presence or absence of medical evidence is one of
the criteria which 20 C.F.R. §404.1527(d) requires an ALJ to
consider.

That regulation states, in part, that “we consider

[whether] a treating source’s opinion ... is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques ....”

See also Walters v. Comm’r of Social Security,

127 F.3d 525 (6th Cir. 1997).

Because this is an acceptable

reason for discounting a treating physician’s opinion, and
because plaintiff, despite her reference to numerous medical
records generated by her visits to Dr. Russell, has not actually
identified a single record which describes either conditions or
test results supporting restrictions that would make her unable
to do even sedentary work, the Court sees no error in the way in
which the ALJ evaluated the evidence concerning her physical
impairments.
With respect to plaintiff’s psychological impairments, the
ALJ provided this rationale for giving little weight to Dr.
Paugh’s opinions.

He noted that although Dr. Paugh did express

opinions, “there are no outpatient treatment records submitted.”
(Tr. 51).

Thus, the ALJ found that although plaintiff had

various psychological conditions - which Dr. Donaldson, the
consultative examiner, had also diagnosed - the evidence about
those impairments was “limited.”

(Tr. 51).

However, one opinion

- that of Dr. Donaldson - was actually supported by medical
findings, and the ALJ gave that opinion significant weight.

The

ALJ also noted that there had been a three-month gap in treatment
with Dr. Paugh, during which plaintiff did not report a need for

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treatment, and that there was a significant difference between
Dr. Paugh’s various evaluations and those of all of the other
mental health professionals who expressed opinions about the
degree of limitation which plaintiff was experiencing.

The ALJ

also explicitly took into account plaintiff’s activities of daily
living.

Again, these reasons for discounting Dr. Paugh’s

opinions are facially valid, and, again, plaintiff’s statement of
errors fails to identify a single treatment note which contains
any evidence supporting Dr. Paugh’s opinions.

Given this lack of

documentation, and given the ALJ’s role in resolving conflicts in
the medical evidence, see, e.g., Burton v. Halter, 246 F.3d
762 (6th Cir. 2001), the Court concludes that the ALJ was
permitted to assign little weight to Dr. Paugh’s opinions and to
credit the findings of Dr. Donaldson and the state agency
reviewers.

Thus, there is no merit in plaintiff’s second

assignment of error.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the defendant Commissioner of Social
Security.
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

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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
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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