Moore v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS that statement of errors be overruled and judgment be entered for defendant - Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/30/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Samantha J. Moore,

:

Plaintiff,

:

v.

:

Commissioner of Social Security,
:
Defendant.

Case No. 2:14-cv-1244
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Samantha J. Moore, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

December 1, 2011, and alleged that Plaintiff became disabled on
March 12, 2010.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on February 20, 2013.
the ALJ denied benefits.

In a decision dated March 22, 2013,

That became the Commissioner’s final

decision on June 30, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on November 4, 2014.

Plaintiff filed her

statement of specific errors on December 4, 2014, to which the
Commissioner responded on February 4, 2015.

Plaintiff filed a

reply brief on February 16, 2015, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 45 years old at the time of the
administrative hearing and who has a high school education,

testified as follows.

Her testimony appears at pages 48-69 of

the administrative record.
Plaintiff said that she last worked sometime in 2010.

She

attempted to go back to work in 2011 but that attempt was not
successful.

She was fired after two months for missing work due

to illness.

In particular, she testified that her anxiety causes

her to become ill when she is around other people.

She also

described problems with her left shoulder and right wrist due to
tendonitis.

She was limited in her ability to lift and carry

objects with her right hand and could not pick up small objects.
She also used inhalers on a daily basis, and experienced some
dizziness and fatigue.
When asked about her physical capabilities, Plaintiff said
she could lift only five pounds and could not stand for more than
ten minutes before she would need a break.

She could walk for

ten to fifteen minutes and could sit for half an hour before
needing to change positions.
times per day.
and dressing.

She had to lie down three or four

She also needed help occasionally with showering
Plaintiff was also seeing a counselor or

psychiatrist for mental health issues.

She said that her memory

and concentration were affected and she had a short attention
span.
On an average day, Plaintiff watched television and
attempted to do some housework.
of her time was spent in bed.

She might crochet as well.

Much

She had given up many outdoor

activities such as hiking and cycling.
III.

The Medical Records

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

The pertinent records - those

relating to Plaintiff’s single statement of error, which relates
to her psychological conditions - can be summarized as follows.
The records which the ALJ had before him in considering
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Plaintiff’s anxiety and depression are these.

First, there were

some notes made by her family physician about mental health
complaints and treatment.

They include a brief note which says

“Depression/Anxiety” on a Family Healthcare, Inc. chart
describing Plaintiff’s October 21, 2009 visit (Tr. 467); a
similar note for the May 21, 2010 visit, followed by a notation
that these conditions were controlled by medication (Tr. 464); a
note on September 9, 2011 showing a prescription of Prozac (Tr.
457); a change in medication on October 17, 2011 (Tr. 455); and a
listing of depressive disorder symptoms which Plaintiff was
experiencing (Tr. 453).

This last note, made on November 9,

2011, also states that Plaintiff had a poor experience with
counseling in the past and had been on four different
antidepressants, all of which she had stopped once she felt
better.

There are also some notes from Lue-Anne Bennett, a

social worker, from 2012 documenting some psychological symptoms.
(Tr. 574-75).
Second, a psychological evaluation was done by Charles
Loomis.

Plaintiff said that her most serious conditions were her

nerves and breathing problems.

She described a history of

alcohol use up until five months before the date of the
evaluation, which occurred on March 13, 2012.

She was in

counseling at that time and was also taking medications to manage
psychological symptoms.

Mr. Loomis observed that Plaintiff’s

affect was constricted and her mood was depressed.
concentration and memory were below average.

Her

The diagnoses

included an anxiety disorder and her GAF was rated at 54.

Mr.

Loomis thought she could follow simple and moderately complex
instructions, had below average ability to maintain attention and
concentration, did not have any limitations in responding to the
social expectations which were present at work, and had some
limitations dealing with work stress due to anxiety, depression,
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and “her perception of her physical limitations.”

(Tr. 481-87).

Lastly, the ALJ had before him opinions from state agency
reviewers.

Dr. Hoyle determined that Plaintiff’s anxiety

disorder and affective disorder imposed only mild limitations on
Plaintiff’s activities of daily living, social functioning, and
maintaining concentration, persistence and pace.
Warren concurred.

(Tr. 118).

(Tr. 93).

Dr.

Both had the benefit of the

treatment notes and also Mr. Loomis’ evaluation report.

The ALJ

used these sources in deciding that Plaintiff did not have any
severe mental impairments.

(Tr. 31-32).

There was additional evidence on this issue submitted to the
Appeals Council.

It consists primarily of a letter from a

licensed independent social worker, Mr. Barnett, co-signed by Dr.
Gottfried, Plaintiff’s family physician, which states that
Plaintiff suffers from major depressive disorder, posttraumatic
stress disorder, and panic disorder; that she had symptoms which
made “coping with the demands of working impossible”; and which,
according to a mental residual functional capacity assessment
form attached to the letter, caused marked to extreme limitations
in almost every area of work-related functioning.

(Tr. 626-39).

The letter and form are dated May 16, 2013, which is about two
months after the date of the ALJ’s decision.
IV.

The Vocational Testimony

Dr. Jeffrey Magrowski was the vocational expert in this
case.

His testimony begins at page 70 of the administrative

record.
Dr. Magrowski was asked to categorize Plaintiff’s past work.
He identified her jobs as waitress, which was light and semiskilled, and housekeeper, which was medium as Plaintiff performed
it, but usually done at the light exertional level.
unskilled.

That job was

Other jobs included restaurant manager (skilled, and

heavy as Plaintiff performed it, but usually light); stocker
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(medium and unskilled); and kitchen helper (also medium and
unskilled).
Dr. Magrowski was then asked some questions about a
hypothetical person of Plaintiff’s age, education, and work
experience who could work at the light exertional level but who
had to avoid more than occasional exposure to temperature
extremes and to fumes, odors, dust, gases, and poorly ventilated
areas.

Dr. Magrowski said that such a person could do some of

Plaintiff’s past jobs including housekeeper, waitress, and
restaurant manager.
Dr. Magrowski was next asked about someone who had the same
environmental limitations as described in the first hypothetical,
but who was limited to sedentary work.

Such a person could not,

he said, do any of Plaintiff’s past work, but the person could be
an appointment clerk, order clerk, or telephone answering service
operator.

He gave numbers for those jobs in both the State and

national economies.
Next, mental limitations were added to the hypothetical
question which assumed a restriction to light work.

Those

included the ability to deal with only simple tasks and
instructions, to sustain concentration for only two hours at a
time, to interact occasionally with others, and to respond
appropriately to workplace changes.

Those additional limitations

would not, according to Dr. Magrowski, preclude someone from
doing the housekeeper job or from working as a bagger of clothing
or garments, a bench assembler, or an office helper.

Finally, if

the exertional level were changed to sedentary, the person could
do jobs like surveillance system monitor, table worker, and
document preparer.

There were about 800 such jobs in Ohio, and

about 22,200 in the national economy.

Finally, he testified that

a person who had additional restrictions including the need to
take long unscheduled breaks, to miss one day of work per week,

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and to interact with the public only rarely, could not work.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 2738 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through September 30, 2013.

Next, he found that Plaintiff had

not engaged in substantial gainful activity since her alleged
onset date of March 12, 2010.

Going to the second step of the

sequential evaluation process, the ALJ determined that Plaintiff
had severe impairments including a history of lung cancer with
lobectomy, chronic obstructive pulmonary disease, and obesity.
The ALJ also found that these impairments did not, at any time,
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 step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the sedentary exertional level except that she
could not tolerate more than occasional exposure to temperature
extremes, dusts, fumes, gases, odors, and poor ventilation.

The

ALJ next concluded that, given this residual functional capacity,
Plaintiff could not do her past relevant work, but she could do
certain jobs identified by the vocational expert, including
appointment clerk, order clerk, and telephone answering service
operator.

The ALJ further found that such jobs existed in

significant numbers in the State and national economies.
Consequently, the ALJ concluded that Plaintiff was not entitled
to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises a
single issue.

She asserts that the Appeals Council erred by

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failing to consider new and material evidence that related to the
period before the date of the ALJ’s decision.

The Commissioner

responds that the Appeals Council’s decision clearly states that
the evidence was considered.

Plaintiff’s reply takes issue with

that statement and also argues that the Appeals Council’s
articulation of its reasoning for concluding that the new
evidence did not affect the correctness of the ALJ’s decision was
insufficient.
The Court begins by noting that Plaintiff has not formally
requested a sentence six remand either in her statement of errors
or in her reply.

As the Court construes her argument, it raises

only a procedural issue relating to the Appeals Council’s review
of the evidence submitted after the ALJ’s decision.

The Appeals

Council, in its denial letter, said this:
In looking at your case, we considered the reasons you
disagree with the decision and the additional evidence
listed on the enclosed Order of Appeals Council.
We considered whether the Administrative law Judge’s
action, findings, or conclusion is contrary to the
weight of the evidence of record. We found that this
information does not provide a basis for changing the
Administrative Law Judge’s decision.
Tr. 1-2. The evidence to which the Appeals Council referred
included the letter and form submitted by Ms. Barnett and the
brief filed on Plaintiff’s behalf on August 23, 2013. That brief
(Tr. 308-09) specifically argued, among other things, that “Ms.
Moore’s therapist, Lue-Anne Barnett LISW-S, submitted a
functional evaluation following the hearing indicating based on
her treatment of Ms. Moore that she had marked to extreme
limitations in all functional domains” and that “[i]t was error
for the ALJ not to include at least some functional limitations
related to ms. Moore’s psychological impairments in her residual
functional capacity.” Plaintiff asserts that, notwithstanding
the Appeals Council’s specific references to the new evidence and
to her arguments concerning the significance of that evidence,
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the Appeals Council’s decision is procedurally inadequate because
it made “no attempt to address [the] critical question” of
“whether the new evidence from Ms. Barnett related to the period
at issue” - something required by 20 C.F.R. §404.970(b). This
failure to articulate was, according to Plaintiff, “so deficient
as to render the regulatory protections offered [in that section]
illusory.” Statement of Errors, Doc. 9, at 6-7. She argues, in
addition, that the apparent failure to consider this “other
source” evidence violated SSR 06-03p. Her major issue with the
Appeals Council’s decision, as summarized in her reply brief, is
that the Appeals Council “committed reversible error by issuing a
final decision which refused to fulfill the clear procedural duty
outlined in the Ruling and regulations.” Reply Memorandum, Doc.
13, at 3.
Plaintiff’s briefs cite no authority for the proposition
that the Appeals Council is required to articulate, in any
specific way, the reasons for its decision or the fact that it
understood and followed the regulations which apply to its review
of an ALJ’s determination. The case law appears to be somewhat
conflicting on this issue. See, e.g., Scott ex rel. Scott v.
Barnhart, 332 F.Supp.2d 869, 877 (D. Md. 2004)(“There is a
difference of opinion among courts as to whether or not the
Appeals Council must articulate its assessment of new evidence”).
That court cited to decisions from the Seventh and Eighth Circuit
Courts of Appeals as favoring the rule that no articulation is
needed, and to three district court cases - including an earlier
case from the District of Maryland - holding the opposite. Since
that case was decided, other Courts of Appeals have joined the
list of courts which do not recognize an articulation
requirement. See, e.g., Burgin v. Comm’r of Social Security, 420
Fed. Appx. 901, 903 (11th Cir. March 30, 2011); Meyer v. Astrue,
662 F.3d 700, 705-06 (4th Cir. 2011)(”the regulations do not
require the Appeals Council to articulate its rationale for
denying a request for review”). This latter case would seem to
overrule both Scott and the other district court decisions within
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the Fourth Circuit on which Scott relied. There do not appear to
be any pertinent decisions from courts within the Sixth Circuit.
Here, despite the fact that the Appeals Council acknowledged
that Plaintiff had submitted new evidence, and that it also
referred to a brief filed on Plaintiff’s behalf citing to that
evidence, Plaintiff asks the Court to presume, based on a lack of
articulation, that the Appeals Council did not follow the
applicable regulatory scheme for evaluating that evidence.
is nothing in the record suggesting this to be true.

There

There are

some regulations which, due to their special consideration of the
interests of claimants or the Court in having a basis for review,
do carry with them an articulation requirement - §404.1527(c) is
one of them, see Wilson v. Comm’r of Social Security, 378 F.3d
541, 544 (6th Cir. 2004) - but the Court of Appeals has been
reluctant to read that requirement into other social security
regulations.

See, e.g., Rabbers v. Comm’r of Social Security,

582 F.3d 647 (6th cir. 2009).

The Court sees no reason to make

an exception here to the general rule that, absent some evidence
to the contrary, an agency is presumed to have followed proper
procedures even if it does not provide a detailed explanation of
its actions.

Because the failure to provide that explanation is

the only basis on which Plaintiff has asked for reversal or
remand, the Court will therefore recommend that her statement of
errors be overruled.
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
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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
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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