Saylor v. Commissioner Social Security Administration

Filing 18

REPORT AND RECOMMENDATIONS re 5 Amended Complaint filed by Pamela Saylor. 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 6/8/2015. Signed by Magistrate Judge Norah McCann King on 5/21/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAMELA SAYLOR,
Plaintiff,
vs.

Civil Action 2:14-cv-1287
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 applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is before the Court for consideration of plaintiff’s Statement
of Specific Errors (“Statement of Errors”), Doc. No. 12, the
Defendant’s Memorandum in Opposition (“Commissioner’s Response”), Doc.
No. 16, and Plaintiff’s Reply to Defendant’s Opposition, Doc. No. 17.
Plaintiff Pamela Saylor protectively filed her application for a
period of disability and disability insurance benefits on February 22,
2011, and her application for supplemental security income on February
21, 2011, alleging that she has been disabled since September 1, 2010.
PAGEID 68, 287-96.

The claims were denied initially and upon

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

An administrative hearing was held on April 11, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did Mark
Pinti, who testified as a vocational expert.

PAGEID 86.

In a

decision dated May 6, 2013, the administrative law judge concluded
that plaintiff was not disabled from September 1, 2010, through the
date of the administrative decision.

PAGEID 68-80.

That decision

became the final decision of the Commissioner of Social Security when
the Appeals Council declined review on June 21, 2014.

PAGEID 54-56.

Plaintiff was 50 years of age on the date of the administrative
decision.

See PAGEID 80, 287.

Plaintiff is insured for disability

insurance purposes through September 30, 2015.

PAGEID 70.

Plaintiff

has at least a high school education, is able to communicate in
English, and has past relevant work as a cashier and care provider.
PAGEID 78.

She has not engaged in substantial gainful activity since

September 1, 2010, the alleged disability onset date.
II.

PAGEID 70.

Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of “degenerative disc disease and anxiety,
depression and polysubstance abuse (active, yet the claimant denied
it).”

PAGEID 70.

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 light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except: occasional ladders, ropes, and scaffolds; she can perform
simple and mildly detailed tasks of a repetitive nature; and, can

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handle no more than frequent changes in the work setting.”
72.

PAGEID 71-

Although this RFC would preclude plaintiff’s past relevant work

as a cashier and care provider, 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 representative jobs as ticket seller
and mail clerk.

PAGEID 78-79.

Accordingly, the administrative law

judge concluded that plaintiff was not disabled within the meaning of
the Social Security Act from September 1, 2010, through the date of
the administrative decision.

PAGEID 79-80.

III. 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).

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In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

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 contends that the
administrative law judge improperly evaluated the medical evidence of
record.

Although plaintiff specifically argues that the

administrative law judge erred in evaluating the opinions of a number
of acceptable medical sources and other sources, see Statement of
Errors, pp. 1-12, the Court concludes that the matter must be remanded
for further consideration of the opinions of the state agency
psychological consultants.
Aracelis Rivera, Psy.D., reviewed the record for the state
agency and completed a mental residual functional capacity assessment
on May 18, 2011.

PAGEID 128-30.

Dr. Rivera opined that plaintiff was

moderately limited in her ability to understand and remember detailed
instructions, but “can understand and remember simple and mildly
detailed instructions.”

PAGEID 129.

Plaintiff is moderately limited

in her ability to maintain attention and concentration for extended
periods and 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

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periods.

PAGEID 129.

Plaintiff “can perform simple and mildly

detailed tasks of repetitive nature.”

PAGEID 129-30.

Plaintiff is

also moderately limited in her ability to respond appropriately to
changes in the work setting.

PAGEID 130.

Dr. Rivera explained that

plaintiff “appeared depressed and has anxiety.

This would affect her

ability to tolerate stress from frequent changes in a work setting.”
Id.
Patricia Semmelman, Ph.D., also reviewed the record for the state
agency and completed a mental residual functional capacity assessment
on September 22, 2011.

PAGEID 154-55.

Accordingt o Dr. Semmelman,

plaintiff is moderately limited in her ability to maintain attention
and concentration for extended periods and 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 154.

Plaintiff “can

perform simple and mildly detailed tasks of repetitive nature.”

Id.

Dr. Semmelman also opined that plaintiff is moderately limited in her
ability to respond appropriately to changes in the work setting.
PAGEID 155.

Dr. Semmelman explained that plaintiff “appeared

depressed and has anxiety.

This would affect her ability to tolerate

stress from frequent changes in a work setting.”

Id.

As physicians who did not examine plaintiff but who provided
medical opinions in this case, Dr. Rivera and Dr. Semmelman are
properly classified as nonexamining sources.

20 C.F.R. §§ 404.1502,

416.902 (A nonexamining source is “a physician, psychologist, or other

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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.
416.920b, 416.927.

20 C.F.R. §§ 404.1520b, 404.1527,

When evaluating the opinion of state agency

reviewing physicians such as Dr. Rivera and Dr. Semmelman, an
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.”
404.1527(e)(2)(ii), 416.927(e)(2)(ii).

20 C.F.R. §§

“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 opinions of Dr. Rivera and Dr. Semmelman as
follows:
The State agency psychological consultants found that the
claimant could work within the mental limitations noted
above (Exhibits 5A; 6A; 9A; 10A). Their findings are given
significant weight, as they have had the opportunity to
examine the claimant’s medical records and their findings
are consistent with the evidence of record.
PAGEID 77.

Plaintiff argues that the administrative law judge erred

in evaluating the opinions of Dr. Rivera and Dr. Semmelman because she

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“failed to explain why her own determined residual functional capacity
is at odds with those very State agency opinions which she afforded
‘significant weight.’”

Statement of Errors, p. 9.

Plaintiff argues

that it was error to find that plaintiff could perform work that
allowed for frequent changes in the work setting when Dr. Rivera and
Dr. Semmelman both opined that plaintiff is moderately limited in her
ability to respond to changes in the work setting and that plaintiff’s
depression and anxiety “would affect her ability to tolerate stress
from frequent changes in a work setting.”

Id.

According to

plaintiff, the administrative law judge erred by assigning significant
weight to these opinions without addressing this inconsistency.

Id.

Plaintiff also argues that the administrative law judge failed to
provide citations to the record, failed to evaluate the appropriate
factors, and failed to consider that Dr. Rivera and Dr. Semmelman did
not have access to the entire record.

Id.

The Commissioner responds that “the ALJ afford[ing] significant
weight to the opinions of the state agency psychological consultants
despite limiting Plaintiff to ‘no more than frequent changes in the
work setting,’ is not reversible error.”
12.

Commissioner’s Response, p.

According to the Commissioner, the administrative law judge’s

“ultimate Step 5 finding reasonably accommodates” the opinions of Dr.
Rivera and Dr. Semmelman by “[t]he RFC restriction to repetitive work,
the fact that the VE identified unskilled jobs, and the description of
the relevant jobs in the DOT together.”

Id. at pp. 12-13.

Commissioner also argues that the administrative law judge’s

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The

“additional hypothetical to the VE provides substantial evidence in
support of her ultimate finding that Plaintiff could perform work in
the national economy.”

Id. at p. 13.

The administrative law judge noted that Drs. Rivera and Semmelman
“found that the claimant could work within the mental limitations
noted above,” i.e., the RFC determined by the administrative law
judge, and assigned “significant weight” to their opinions.
77.

PAGEID

The opinions of Drs. Rivera and Semmelman are not, however,

consistent with the administrative law judge’s RFC determination.
Drs. Rivera and Semmelman both opined that plaintiff has adaptation
limitations that are not included in the RFC determination.

Both

doctors opined that plaintiff’s ability to respond appropriately to
changes in the work setting is moderately limited and that plaintiff’s
depression and anxiety “would affect her ability to tolerate stress
from frequent changes in a work setting.”

PAGEID 130, 154-55.

In

contrast, plaintiff’s RFC as found by the administrative law judge
limits her to “no more than frequent changes in the work setting.”
PAGEID 72.

The Commissioner argues that plaintiff’s adaptation

limitations are accounted for in the limitation to repetitive work.
Commissioner’s Response, pp. 12-13.

However, Drs. Rivera and

Semmelman opined that the limitation to “tasks of repetitive nature”
was a limitation in sustained concentration and persistence, not in
adaptation.

PAGEID 129-30, 154.

address these inconsistencies.

The administrative law judge did not

Moreover, contrary to the

Commissioner’s argument, Commissioner’s Response, p. 13, the

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additional hypotheticals posed to the vocational expert did not
account for the adaptation limitations found by Drs. Rivera and
Semmelman.

See PAGEID 113-16; Felisky v. Bowen, 35 F.3d 1027, 1036

(6th Cir. 1994) (where a hypothetical accurately described the
plaintiff in all relevant respects, the vocational expert’s response
to the hypothetical question constitutes substantial evidence).

Under

these circumstances, the Court concludes that the matter must be
remanded for further consideration of the opinions of Dr. Rivera and
Dr. Semmelman.
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 the opinions of Dr. Rivera and
Dr. Semmelman.
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).

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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

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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).

May 21, 2015

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

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