Strayer v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Jenny F. Strayer. 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. Objections to R&R due by 11/17/2014. Signed by Magistrate Judge Norah McCann King on 10/29/2014. (pes1)

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

JENNY F. STRAYER,
Plaintiff,
vs.

Civil Action 2:14-cv-251
Judge Watson
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 Jenny F. Strayer’s Statement of Specific Errors (“Statement
of Errors”), Doc. No. 10, the Commissioner’s Opposition to Plaintiff’s
Statement

of

Errors

(“Commissioner’s

Response”),

Doc.

No.

17,

and

Plaintiff’s Reply, Doc. No. 18.
Plaintiff Jenny F. Strayer filed her application for benefits on
August 17, 2010, alleging that she has been disabled since August 10, 2010.
PAGEID 42, 199-200.

Plaintiff’s application was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.

1

An administrative hearing was held on August 1, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did a
vocational expert.

PAGEID 56.

In a decision dated November 2, 2012, the

administrative law judge concluded that plaintiff was not disabled from
August 10, 2010, her alleged onset date, through December 31, 2011, the
date that plaintiff was last insured.

PAGEID 49.

That decision became

the final decision of the Commissioner of Social Security when the Appeals
Council declined review on January 30, 2014.

PAGEID 32-34.

Plaintiff was 57 years of age on the date of the administrative
decision.

See PAGEID 49, 199.

She has at least a high school education,

is able to communicate in English, and has past relevant work as a nurse.
PAGEID 48.

Plaintiff was last insured for disability insurance purposes

on December 31, 2011.

PAGEID 44.

She has not engaged in substantial

gainful activity from August 10, 2010, through the date that she was last
insured.
II.

PAGEID 44.

Medical Evidence1
Plaintiff treated with Juan F. Lebron, M.D., on December 9, 2003, for

a detachment of the retina of the left eye.

PAGEID 317.

Plaintiff

continued to treat with Dr. Lebron on at least ten occasions through 2010.
PAGEID 343-51, 393.

On October 11, 2010, Dr. Lebron diagnosed lattice

degeneration OU and noted that plaintiff’s uncorrected vision as of
September 8, 2009, was 20/25 in the right eye and 20/400 in the left eye.
Id.

1

The Court’s discussion of the medical evidence is limited to the issues raised
in plaintiff’s Statement of Errors.

2

Plaintiff first treated with Stephen N. CaJacob, O.D., on January 13,
1990.

PAGEID 321.

On October 11, 2010, Dr. CaJacob diagnosed retinal

detachment and recurrent macular hole in the left eye.

PAGEID 324.

Dr.

CaJacob noted a history of retinal detachment repair with vitrectomy and
cataract surgery in 2003. There was an abnormal field of vision in the left
eye.

Id.
Plaintiff was consultatively psychologically examined for the state

agency by Michael J. Wuebker, Ph.D., on December 1, 2010.

PAGEID 373-80.

Dr. Wuebker assigned a global assessment of functioning score (“GAF”) of
512 and diagnosed dysthymic disorder; social phobia; cognitive disorder,
NOS; and personality disorder, NOS (borderline, avoidant, and dependent
traits).

PAGEID 379.

According to Dr. Wuebker, plaintiff’s ability to

relate to others, including fellow workers and supervisors, is moderately
impaired, id., plaintiff’s ability to understand, remember, and follow
simple instructions in a work environment is mildly impaired, PAGEID 380,
and plaintiff’s ability to maintain attention, concentration, persistence,
and pace to perform simple repetitive tasks in a work environment is
moderately

impaired.

Id.

“The

more

a

job

would

require

social

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

Id.

Dr. Wuebker further opined that plaintiff is moderately impaired in her

2

“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

ability to withstand the stress and pressures associated with day-to-day
work activity.

Id.

Carl Tishler, Ph.D., reviewed the record and completed a mental
residual functional capacity assessment on December 18, 2010.
92-93.

PAGEID

According to Dr. Tishler, plaintiff was moderately limited in her

ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods.

PAGEID 93.

Plaintiff was also moderately limited in her ability to accept instructions
and respond appropriately to criticism from supervisors.

Id.

Leslie Green, M.D., reviewed the record and completed a physical
residual functional capacity assessment on January 10, 2011.
89-91.

PAGEID

According to Dr. Green, the record documented a diagnosis of

macular degeneration of the left eye.

Plaintiff could lift and/or carry

50 pounds occasionally and 25 pounds frequently.

PAGEID 89-90.

She could

stand and/or walk for about six hours in an eight-hour workday and sit for
about six hours in an eight-hour workday.

PAGEID 90.

Dr. Green opined

that plaintiff could never climb ladders, ropes, or scaffolds, and would
have limited acuity, accommodation, and field of vision in her left eye
and limited depth perception in both eyes.

PAGEID 90-91.

Plaintiff

should also avoid all exposure to hazards such as machinery and heights.
PAGEID 91.
Walter Holbrook, M.D., reviewed the record and completed a physical
residual functional capacity assessment on April 15, 2011.

PAGEID 106-08.

Dr. Holbrook opined that, as a result of plaintiff’s retinal detachment

4

and buckling, plaintiff would be limited to lifting and/or carrying 20
pounds occasionally and 10 pounds frequently, standing and/or walking for
about six hours in an eight-hour workday, and sitting for about six hours
in an eight-hour workday.

PAGEID 106.

Plaintiff could never climb

ladders, ropes, or scaffolds, and would have limited acuity, accommodation,
and field of vision in her left eye and limited depth perception in both
eyes.
such

PAGEID 107.
as

Plaintiff should also avoid all exposure to hazards

machinery,

unprotected heights.

hazardous

equipment,

commercial

vehicles,

and

PAGEID 108.

Bruce Goldsmith, Ph.D., reviewed the record and, on April 21, 2011,
completed a mental residual functional capacity assessment.
108-10.

PAGEID

According to Dr. Goldsmith, plaintiff was moderately limited in

her ability to (1) maintain attention and concentration for extended
periods, (2) perform within a schedule, maintain regular attendance, and
be punctual within customary tolerances, (3) complete a normal workday and
workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of
rest periods, and (4) respond appropriately to changes in the work setting.
Id.

Plaintiff may have “occasional (once per week) interruptions from her

depression or anxiety performing a normal workweek.”

PAGEID 109.

Jerda M. Riley, M.D., reviewed the record and, on May 3, 2011,
summarized the visual and exertional assessments as follows:
The [state agency] established exertional limitations visually
exertional limitations [sic] of 50 lbs occasionally and 25 lbs
frequently can apply along with limitations of depth perception
and to avoid activities requiring operating moving vehicles,
working at hazardous heights and with hazardous machinery.
This can include avoiding machines with open areas, conveyors,

5

parts that can engage the body or body part of the claimant or
fellow worker, machines with blades or combustible parts.
PAGEID 382.
Michael Kovar, Ph.D., reviewed the evidence relating to plaintiff’s
mental impairments and, on May 9, 2011, opined that plaintiff “would be
limited to simple, routine work-like activities.”

PAGEID 385-90.

III. Administrative Decision
The

administrative

law

judge

found

that

plaintiff’s

severe

impairments consist of dysthymia, poor vision, and a cognitive disorder
based on low visual memory.

PAGEID 44.

The administrative law judge also

found that plaintiff’s impairments neither meet nor equal a listed
impairment and leave plaintiff with the residual functional capacity
(“RFC”) to perform
medium work as defined in 20 CFR 404.1567(c) except the claimant
is precluded from working at heights, from working around
hazardous machinery, from work that requires balancing, and
from work that requires commercial driving.
She is also
limited to unskilled work as defined by the Dictionary of
Occupational Titles, and low stress work which, for this
claimant, means that she cannot do work that requires
assembly-line production quotas or that is fast-paced work.
PAGEID 45-46.

Although this RFC precludes plaintiff’s past relevant work,

the administrative law judge relied on the testimony of the vocational
expert to find that plaintiff is nevertheless able to perform a significant
number of jobs in the national economy, including such jobs as laundry
worker

and

machine

packager.

PAGEID

48-49.

Accordingly,

the

administrative law judge concluded that plaintiff was not disabled within
the meaning of the Social Security Act from August 10, 2010, through
December 31, 2011.

PAGEID 49.

6

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.

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.
In her Statement of Errors, plaintiff first argues that the
administrative law judge erred in evaluating Dr. Holbrook’s medical
opinion.

Statement of Errors, pp. 6-11. As noted supra, Dr. Holbrook

reviewed the record and completed a residual functional capacity assessment

7

on April 15, 2011.

PAGEID 106-08.

Dr. Holbrook opined that, because of

plaintiff’s vision problems, she would be limited to light work; could never
climb ladders, ropes, or scaffolds; could not operate hazardous equipment
or commercial vehicles; and would have visual limitations.

Id. As a

physician who did not examine plaintiff but who provided a medical opinion
in this case, Dr. Holbrook is properly classified as a nonexamining source.
20 C.F.R. § 404.1502(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.”).

An

administrative law judge is required to evaluate every medical opinion,
regardless of its source.

20 C.F.R. §§ 404.1520b, 404.1527(b). When

evaluating the opinion of a state agency reviewing physician such as Dr.
Holbrook, the administrative law judge should consider factors “such as
the consultant's medical specialty and expertise in [the Commissioner’s]
rules, the supporting evidence in the case record, supporting explanations
the medical or psychological consultant provides, and any other factors
relevant to the weighing of the opinions.”

20 C.F.R. § 404.1527(e)(2)(ii).

“Unless a treating source's opinion is given controlling weight, the
administrative law judge must explain in the decision the weight given to
the opinions of a State agency medical . . . consultant,” “as the
administrative law judge must do for any opinions from treating sources,
nontreating sources, and other nonexamining sources.”

Id.

In the case presently before the Court, the administrative law judge
evaluated the state agency reviewing physicians’ opinions as follows:
State agency reviewing consultants assessed the claimant’s
physical residual functional capacity at the medium exertion

8

level with the hazard restrictions set forth above due to her
visual impairment. Their assessments are consistent with
the evidence from the claimant’s ophthalmologist cited herein
above and with the evidence from her psychological
[consultative examination] with Dr. Wuebker. . . .
. . .
The medical record, including evidence from the claimant’s
treating physician, Juan Lebron, M.D., and Stephen CaJacob,
OD, does not establish a physical impairment except for the
claimant’s visual limitation.
However, the limitation
requires restricting the claimant to medium work with the
hazard restrictions described more specifically herein
above.
Accordingly, great weight has been given to the
assessment by the State agency’s medical consultants. The
restriction to medium exertion is also consistent with the
advice from the claimant’s treating physician and
ophthalmologist to avoid straining herself so as not to put
pressure on her left eye.
PAGEID 47.
Plaintiff argues that the administrative law judge materially
misrepresented Dr. Holbrook’s opinion by characterizing the opinions of
all the state agency physicians as consistent with medium exertion.
Statement of Errors, pp. 6-9.

Plaintiff contends, further, that the

administrative law judge committed reversible error by failing to address
the inconsistencies in these opinions.

Id.

The Commissioner contends

that the administrative law judge discounted Dr. Holbrook’s opinion and
gave great weight to only the opinions of the state agency physicians, i.e.,
Dr. Riley and Dr. Green, who opined that plaintiff is capable of a reduced
range

of

medium

exertion.

Commissioner’s

Response,

p.

4.

The

Commissioner’s argument is not well taken.
The administrative law judge found that the “[s]tate agency
reviewing consultants assessed the claimant’s physical residual functional

9

capacity at the medium exertion level,” and she assigned “great weight”
to the “assessment by the State agency’s medical consultants.”

PAGEID 47.

Contrary to the Commissioner’s contention, there is no indication that the
administrative law judge was referring to only the opinions of Dr. Riley
and Dr. Green when she assigned great weight to the “assessment by the State
agency’s medical consultants” or when she noted that the “State agency
reviewing consultants assessed the claimant’s physical residual functional
capacity at the medium exertion level.” The inconsistency between the
opinions of Dr. Riley and Dr. Green, who opined that plaintiff is capable
of medium work, and the opinion of Dr. Holbrook, who limited plaintiff to
a reduced range of light work, is significant.

Particularly is this so

where, as here, the plaintiff is an individual of advanced age.

See, e.g.,

20 C.F.R. § Pt. 404, Subpt. P, App. 2, Rule 202.06.
Even if the Commissioner’s interpretation of the administrative
decision – i.e., that the administrative law judge was referring only to
the opinions of Dr. Riley and Dr. Green when she assigned great weight to
the

state

agency

opinions

–

one

is

forced

to

conclude

that

the

administrative law judge wholly failed to consider Dr. Holbrook’s opinion.
Although, as the Commissioner argues, see Commissioner’s Response, p. 5,
an administrative law judge is not required to “discuss in detail” every
aspect of a state agency physician’s medical opinion, it must be apparent
from a fair reading of the administrative decision that the medical opinions
of all nonexamining sources were at least considered. That is simply not
the case here.
Under these circumstances, the Court concludes that the matter must

10

be remanded for further consideration of the opinion of Dr. Holbrook.
It is accordingly 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
consideration of Dr. Holbrook’s opinion.
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.
636(b)(1); Fed. R. Civ. P. 72(b).

28 U.S.C. §

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

October 29, 2014

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

11