Harpest v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that the decision of the Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action be REMANDED to the Commissioner of Social Security for further proceedings. Objections to R&R due by 11/13/2014. Signed by Magistrate Judge Norah McCann King on 10/27/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PEGGY J. HARPEST,
Plaintiff,
vs.

Civil Action 2:13-cv-925
Judge Frost
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I. Background
This is an action instituted under the provisions of 42 U.S.C. §
405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.

This matter is now before the

Court for consideration of Plaintiff Peggy J. Harpest’s Statement of
Specific Errors (“Statement of Errors”), Doc. No. 14, the
Commissioner’s Memorandum in Opposition, Doc. No. 20, and Plaintiff’s
Reply, Doc. No. 21.
Plaintiff Peggy J. Harpest filed her application for benefits on
July 8, 2009, alleging that she has been disabled since April 21,
2009.

PAGEID 57, 180.

The application was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on March 2, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did

James Lanier, Ph.D., who testified as a vocational expert.

PAGEID 75.

In a decision dated April 27, 2012, the administrative law judge
concluded that plaintiff was not disabled from April 21, 2009, through
the date of the administrative decision.

PAGEID 57-68.

That decision

became the final decision of the Commissioner of Social Security when
the Appeals Council declined review on July 30, 2013.

PAGEID 39.

Plaintiff was 46 years of age on the date of the administrative
decision.

See PAGEID 68, 180.

She has a limited education, is able

to communicate in English, and has past relevant work as a cashier II,
cleaner, warehouse/factory laborer, machine operator, stock clerk, job
coach, stock control clerk, and material handler.

PAGEID 66-67.

Plaintiff was last insured for disability insurance benefits on
September 30, 2014.

PAGEID 59.

She has not engaged in substantial

gainful activity since April 21, 2009, her alleged date of onset of
disability.
II.

Id.

Medical Evidence
Plaintiff challenges only the administrative law judge’s

evaluation of her mental impairments.

The Court therefore discusses

only that evidence relevant to the issues raised by plaintiff.
Plaintiff has treated with Sharon K. Lee, C.N.P., since at least
2000 for, inter alia, depression and anxiety.

See PAGEID 327.

CNP

Lee has prescribed medication for the conditions, although plaintiff
has demonstrated a pattern of discontinuing the medication upon
improvement.

See, e.g., id.; PAGEID 329-32.

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In January 2007, plaintiff reported that she was having
difficulty caring for herself and organizing her thoughts; she was not
sleeping more than three hours per night.

PAGEID 335.

CNP Lee

diagnosed bipolar disorder/depression and prescribed Zyprexa.

In

March 2010, plaintiff reported that she had experienced increased
depression and anxiety since October 2009.

PAGEID 478.

CNP Lee

prescribed Cymbalta; plaintiff reported that her mood was “much
improved” on March 31, 2010, and she experienced only occasional
feelings of depression and anxiety.

PAGEID 477.

On April 14, 2010,

plaintiff reported that she “feels great on Cymbalta,” had “a better
outlook on life,” and was “out and about doing things.”

PAGEID 476.

Plaintiff was consultatively psychologically evaluated, at the
request of the state agency, by Michael J. Wuebker, Ph.D., on June 10,
2010. PAGEID 487-92.

Dr. Wuebker assigned a global assessment of

functioning score (“GAF”) of 501 and diagnosed major depression,
recurrent, moderate; social phobia; and personality disorder, NOS
(borderline, avoidant, and dependent traits).

PAGEID 490-91.

Dr.

Wuebker opined that plaintiff’s ability to relate to others is
unimpaired, her ability to understand, remember, and follow simple
instructions in a work environment is mildly impaired, and her ability

1

“The GAF scale is a method of considering psychological, social,
and occupational function on a hypothetical continuum of mental
health.
The GAF scale ranges from 0 to 100, with serious
impairment in functioning at a score of 50 or below.
Scores
between 51 and 60 represent moderate symptoms or a moderate
difficulty
in
social,
occupational,
or
school
functioning . . . .”
Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 436 n.1 (6th Cir. 2012).

3

to maintain attention, concentration, persistence, and pace sufficient
to perform simple repetitive tasks in a work environment is moderately
impaired.

PAGEID 491.

Dr. Wuebker further opined that plaintiff’s

mental ability to withstand the stress and pressures associated with
day-to-day work activity is moderately impaired.

According to

Id.

Dr. Wuebker, plaintiff’s mood and anxiety issues “would seemingly
moderately affect these abilities.

The more a job would require

social contact/interaction, the greater would seemingly be her
impairment.”

Id.

Caroline Lewin, Ph.D., reviewed the record and completed a
psychiatric review technique form and mental residual functional
capacity assessment on June 17, 2010.

PAGEID 494-510.

According to

Dr. Lewin, plaintiff was moderately limited in activities of daily
living and had difficulty in maintaining social functioning and in
maintaining concentration, persistence, or pace.

PAGEID 504.

Plaintiff was moderately limited in seven of twenty areas of
understanding and memory, sustained concentration and persistence,
social interaction, and adaptation.

PAGEID 508-09.

She was not

significantly limited in the remaining 13 areas of functioning.

Id.

Dr. Lewin opined that plaintiff
remains able to cope with most instructions, concentrate
short term but not necessarily persist to completion on her
own consistently, cooperate with others but not seek out
others in a work setting, may avoid public (shops at night)
but is not in conflict with others, and should be able to
function mentally with simple tasks.
PAGEID 510.

4

Eli Perencevich, D.O., reviewed the record for the state agency
and, on June 29, 2010, opined that Dr. Lewin’s mental residual
functional capacity assessment “appears reasonable.”

PAGEID 512.

CNP Lee completed a mental residual functional capacity
questionnaire on June 2, 2011.

PAGEID 616-18.

CNP Lee opined that

plaintiff was extremely limited in her ability to work in cooperation
with or in proximity to others without being districted by them.
PAGEID 617.

Plaintiff had marked limitations in eight of the

remaining 15 areas of functioning related to social interaction and
adaptation, moderate limitations in four areas, and mild limitation in
three areas.

PAGEID 617-18.

According to CNP Lee, plaintiff’s

condition would likely deteriorate if she were placed under the stress
of a job.

PAGEID 618.

CNP Lee noted that plaintiff had “multiple

previous jobs despite employer’s attempts to accommodate [increased]
stress of work environment; claimant has [increased] stress,
maladaptive behavior unable to complete work; difficulty managing life
and work.

DX with social phobia disorder.”

Id.

Plaintiff underwent mental health treatment on two occasions in
October 2011 at Consolidated Care, Inc.

PAGEID 646-62.

Plaintiff

reported increased symptoms of depression and anxiety, including being
withdrawn and isolated, decreased interest in activities, difficulty
concentrating and completing tasks, feeling helpless and worthless,
and trouble sleeping.

PAGEID 659.

Plaintiff was assigned a GAF of 47

and diagnosed with major depressive disorder - severe without
psychotic features.

PAGEID 660.

A diagnosis of bipolar I disorder

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was also suspected.
Prasad, M.D.

PAGEID 559.

Plaintiff was referred to M.G. Shiva

PAGEID 660.

Plaintiff underwent treatment by Dr. Prasad on December 20, 2011.
PAGEID 640.

Plaintiff reported having been tearful and emotional for

three years, panic attacks, and poor sleep patterns.

Id.

Upon

examination, plaintiff appeared anxious, had coherent speech, reported
no delusions or hallucinations, and had no suicidal thoughts.

Id.

Dr. Prasad assigned a GAF of 51-60 and diagnosed bipolar disorder and
anxious personality.

Id.

He prescribed Effexor XR and Lamictal.

Id.

On February 3, 2012, plaintiff reported to Dr. Prasad that she
felt very well, was sleeping regularly, and felt like she had “broken
out of [her] box.”

PAGEID 639.

Plaintiff was oriented, had immediate

recall, concentration, and orientation and used normal speech. Her
mood was not euthymic, anxious, angry, irritated, or depressed; her
affect was appropriate. She had no preoccupation or obsession and her
thought process was goal directed and coherent with no flight of
ideas.

Id.

III. Administrative Decision
The administrative law judge found that plaintiff’s severe
mental impairment consisted of affective disorder.

PAGEID 59.

Her

impairment neither met nor equalled a listed impairment and leaves
plaintiff with the residual functional capacity (“RFC”) to “perform
light work as defined in 20 CFR 404.1567(b) except: claimant is
limited to simple work with only superficial contact with coworkers
and supervisors and no contact with the general public.”

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PAGEID 60-

63.

Although this RFC precluded plaintiff’s past relevant work, the

administrative law judge relied on the testimony of the vocational
expert to find that plaintiff is capable of performing a significant
number of jobs in the national economy, including such jobs as routine
clerk, mail clerk, and small products bench assembler.

PAGEID 66-68.

Accordingly, the administrative law judge concluded that plaintiff was
not disabled within the meaning of the Social Security Act from April
21, 2009, through the date of the administrative decision.

PAGEID 68.

IV. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.

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Kirk, 667

F.2d at 536.

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

Plaintiff argues, first, that the administrative law judge
erred in evaluating the June 2, 2011, opinion of CNP Lee.
of Errors, pp. 7-13.

Statement

CNP Lee is not a “treating source” within the

meaning of the Social Security regulations, because she is not a
“physician, psychologist, or other acceptable medical source.” 20
C.F.R. §§ 404.1502, l513(a).

The opinions of nurse practitioners,

even treating nurse practitioners, are therefore not entitled to the
deference to which the opinions of treating physicians are ordinarily
entitled.

See 20 C.F.R. § 404.1527(d).

However, administrative law

judges are vested with the “discretion to determine the proper weight
to accord opinions from ̔other sources’ such as nurse practitioners.”
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007)
(citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th Cir.
1997)).

Evidence from other sources, including nurse practitioners,

may be considered “to show the severity of [the claimant’s]
impairment(s) and how it affects [the claimant’s] ability to work.”
20 C.F.R. § 404.1513(d)(1).

Among the factors to be considered in

evaluating the opinions of these “other sources” are the length of
time and frequency of treatment, consistency with other evidence, the
degree to which the source presents relevant evidence to support the

8

opinion, how well the opinion is explained, whether the source has
special expertise, and any other factor supporting or refuting the
opinion.

SSR 06-03p, 2006 WL 2329939, at *4-5 (Aug. 9, 2006).

An

administrative law judge need not weigh all the factors in every case;
the evaluation depends on the particular facts in each case.
at *5.

See id.

However, an administrative law judge “generally should explain

the weight given to opinions from these ̔other sources,’ or otherwise
ensure that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning.”

Id. at *6.

Acknowledging that CNP Lee is an “other source,”
Errors, p. 9,

Statement of

plaintiff nevertheless argues that the administrative

law judge erred by failing to consider CNP Lee’s June 2, 2011 mental
residual functional capacity evaluation.

Id. at 8-9.

CNP Lee completed physical and mental residual functional
capacity evaluations on June 2, 2011.

PAGEID 613-18.

With regard to

the latter, CNP Lee opined that plaintiff was extremely limited in her
ability to work in cooperation with or in proximity to others without
being districted by them.

PAGEID 617.

In the remaining 15 areas of

functioning related to social interaction and adaptation, CNP Lee
opined that plaintiff had marked limitations in eight areas, moderate
limitations in four areas, and mild limitation in three areas.
617-18.

CNP Lee further opined that plaintiff’s condition would

likely deteriorate if she were placed under the stress of a job.
PAGEID 618.

9

PAGEID

Noting that plaintiff had a longstanding treating relationship
with CNP Lee, the administrative law judge categorized CNP Lee’s
mental health treatment of plaintiff as “conservative.”

PAGEID 65.

The administrative law judge also expressly considered CNP Lee’s June
2011 opinion:
[T]he undersigned has considered the opinion of the
claimant’s primary medical provider, Sharon K. Lee. At the
hearing, the medical provider was described as a medical
doctor;
in
fact
she
is
a
certified
family
nurse
practitioner.
Accordingly, the undersigned gives greater
weight
to
records
containing
statements
by
treating
physicians. FNP Lee assessed an extremely limited residual
functional capacity that is inconsistent with her own
treatment records as well as the evidence of record as a
whole (Ex. 24F, pp. 2-6).
PAGEID 66.

The administrative law judge went on to discuss specific

inconsistencies between the record and CNP Lee’s opinion regarding
plaintiff’s physical limitations.

Id.

Although the administrative law judge cited to the exhibit that
encompasses CNP Lee’s entire evaluation of plaintiff, i.e., both
physical and mental (Exhibit 24F, pp. 2-6), it is unclear whether the
administrative law judge actually considered CNP Lee’s evaluation of
plaintiff’s mental status.

The administrative law judge found

generally that CNP Lee’s opinion was inconsistent with her own
treatment records and the evidence as a whole, but he expressly
addressed only aspects of CNP Lee’s evaluation of plaintiff’s physical
capacity.

See PAGEID 66.

Moreover, although the administrative law

judge stated that he accorded greater weight to “records containing
statements by treating physicians,” id., the record contains no

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statement by a treating physician of plaintiff’s mental limitations.
As agency reviewing physicians, Dr. Levin and Dr. Perencevich were
“nonexamining” sources;2 as a one-time consultative physician, Dr.
Wuebker was a “nontreating” source;3 and Dr. Prasad, who treated
plaintiff once in December 2011 and once in February 2012, did not
provide a “medical opinion”4 regarding plaintiff’s functional
abilities.

Although an administrative law judge could properly

discount CNP Lee’s opinion regarding plaintiff’s mental limitations in
favor of “medical opinions” from “acceptable medical sources,” it is
unclear from the language used by the administrative law judge whether
CNP Lee’s mental residual functional capacity evaluation was even
considered at all.
Plaintiff next argues that the hypothetical question posed by the
administrative law judge to the vocational expert did not accurately
portray plaintiff’s moderate psychological limitations.
Errors, pp. 13-18.

Statement of

“In order for a vocational expert's testimony in

response to a hypothetical question to serve as substantial evidence
in support of the conclusion that a claimant can perform other work,
the question must accurately portray a claimant’s physical and mental
impairments.”

Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th

2

A nonexamining source is “a physician, psychologist, or other acceptable
medical source who has not examined [the claimant] but provides a medical or
other opinion in [the claimant’s] case.” 20 C.F.R. § 404.1502.
3
A “[n]ontreating source means a physician, psychologist, or other
acceptable medical source who has examined [the claimant] but does not have,
or did not have, an ongoing treatment relationship with [the claimant].” See
20 C.F.R. § 404.1502.
4
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(2).

11

Cir. 2010).

“Hypothetical questions, however, need only incorporate

those limitations which the [administrative law judge] has accepted as
credible.”

Parks v. Soc. Sec. Admin., 413 F. App’x 856, 865 (6th Cir.

2010) (citing Casey v. Sec. of Health & Human Servs., 987 F.2d 1230,
1235 (6th Cir. 1993).
The administrative law judge found, at steps two and three of the
sequential evaluation process, that plaintiff had moderate
difficulties with regard to concentration, persistence, or pace.
PAGEID 62.

These limitations, as noted by the administrative law

judge, “are not a residual functional capacity assessment,” but are
nevertheless reflected in the RFC determination. PAGEID 62-63.

Yet

the administrative law judge found that plaintiff has the RFC to
“perform light work as defined in 20 CFR 404.1567(b) except: claimant
is limited to simple work with only superficial contact with coworkers
and supervisors and no contact with the general public,”

PAGEID 63,

and asked the vocational expert to assume a claimant with plaintiff’s
vocational profile who is limited to light exertion and simple work
“with only superficial contact with coworkers and supervisors and none
with the general public.”

PAGEID 102.

Plaintiff argues that the

hypothetical posed to the vocational expert is deficient because it
did not include the moderate limitation in concentration, persistence,
and pace found by the administrative law judge.

Statement of Errors,

p. 13. Referring to Ealy, 594 F.3d 504, plaintiff specifically argues
that the limitations found by the administrative law judge in the RFC
determination do not appropriately reflect a moderate limitation in

12

concentration, persistence, or pace.

Statement of Errors, pp. 13-18.

As discussed supra, a vocational expert’s testimony in response
to a hypothetical question can serve as substantial evidence only if
the question accurately portrays the claimant’s physical and mental
impairments.

Ealy, 594 F.3d at 516.

In Ealy, the administrative law

judge “relied on the vocational expert’s testimony in response to a
hypothetical question that stated, in relevant part, ‘assume this
person is limited to simple, repetitive tasks and instructions in nonpublic work settings.’”

Id. at 517.

The administrative law judge had

expressly found that the plaintiff could work for two-hour segments
and that speed of performance could not be critical to his job, but
had failed to include that limitation in the hypothetical posed to the
vocational expert.

Id. at 516. The Sixth Circuit remanded the case

because the hypothetical failed to adequately describe the claimant’s
moderate difficulties with regard to concentration, persistence or
pace.

See id. (citing Edwards v. Barnhart, 383 F. Supp. 2d 920, 930-

31 (E.D. Mich. 2005) (finding that a hypothetical limiting claimant to
“jobs entailing no more than simple, routine, unskilled work” is not
adequate to convey a moderate limitation in ability to concentrate,
persist, and keep pace) (“Plaintiff may be unable to meet quotas, stay
alert, or work at a consistent pace, even at a simple, unskilled,
routine job.”); Whack v. Comm’r of Soc. Sec., No. 06-4917, 2008 U.S.
Dist. LEXIS 14083, at *8 (E.D. Pa. Feb. 26, 2008) (citing cases for
the proposition that hypothetical restrictions of “simple” or “lowstress” work do not sufficiently incorporate the claimant’s medically

13

established limitations where the claimant has moderate deficiencies
in concentration, persistence, or pace)).
The Commissioner in this case argues that, “since Ealy, this
district and others have reaffirmed that a limitation to simple,
repetitive tasks — particularly with additional limitations that
specifically address Plaintiff’s unique mental impairments — may
reasonably address a claimant’s moderate impairment of concentration,
persistence, and pace.”

Commissioner’s Response, p. 8.

The

Commissioner is correct that “several post-Ealy decisions declined to
adopt a bright line rule that a limitation to ‘simple repetitive
tasks’ in an RFC and hypothetical to the VE is not adequate to address
a claimant's moderate impairment as to concentration, persistence, and
pace.”

Horsely v. Comm’r of Soc. Sec., No. 1:11-CV-703, 2013 WL

55637, at *8 (S.D. Ohio Jan. 3, 2013) report and recommendation
adopted Horsley v. Comm'r of Soc. Sec., No. 1:11-CV-703, 2013 WL
980315 (S.D. Ohio Mar. 13, 2013)).

However, it is significant that

the administrative law judge in this case did not limit plaintiff to
“simple repetitive tasks;” rather, the administrative law judge
limited plaintiff to only “simple” work.

PAGEID 63.

As the Sixth

Circuit noted in Ealy, hypothetical restrictions to “simple” work may
not sufficiently incorporate a claimant’s medically established
limitations where, as here, the claimant has moderate deficiencies in
concentration, persistence, or pace.

Ealy, 594 F.3d at 516-17 (citing

Whack, 2008 U.S. Dist. LEXIS 14083 at *8).
Here, the administrative law judge expressly found that plaintiff

14

is moderately impaired in the areas of concentration, persistence, or
pace, yet he failed to adequately address that limitation in his RFC
assessment.

This Court therefore cannot conclude that the

hypothetical posed to the vocational expert fairly encompassed all of
the limitations actually found by the administrative law judge.
It is therefore RECOMMENDED that the decision of the Commissioner
be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this
action be REMANDED to the Commissioner of Social Security for further
proceedings consistent with the foregoing.5
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
5

The Court realizes that, in recommending reversal of the Commissioner’s
decision, the Court has focused on the language used by the administrative
law judge. The imprecise and ambiguous nature of the language used, however,
precludes a finding that the administrative law judge’s decision is supported
by substantial evidence.

15

v. Walters, 638 F.2d 947 (6th Cir. 1981).

October 27, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

16