Mattox v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/18/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nicholas R. Mattox,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:14-cv-1350
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Nicholas R. Mattox, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

August 3, 2011, and alleged that Plaintiff became disabled on
June 1, 2010.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on January 17, 2013.
denied benefits.

In a decision dated May 28, 2013, the ALJ

That became the Commissioner’s final decision

on June 24, 2014, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on November 7, 2014.

Plaintiff filed his

statement of specific errors on December 11, 2014, to which the
Commissioner responded on February 14, 2015.

No reply brief has

been filed, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 39 years old at the time of the
administrative hearing and who has a ninth grade education,
testified as follows.

His testimony appears at pages 32-44 of

the administrative record.

Plaintiff was brought to the hearing by his mother, who was
his sole source of support.

He testified that for a number of

years, he had done drywall work, but his chronic fatigue and
depression now prevent him from doing that.

He had attempted to

get his GED but found himself unable to retain any information.
He got medication for his sleep disorder but still had such bad
headaches that he could not get to work on time or do his work
properly.
Describing his sleep disorder, Plaintiff said that he may go
three or four days without sleeping.

He had been to a

neuropsychologist for evaluation, and she had recommended that he
see other specialists, but he could not afford to do so.
On a daily basis, Plaintiff might attempt to sleep if he had
not done so for several days.
several days.

When he did sleep, he slept for

After a full day of not sleeping, he would not

feel safe driving or leaving the house.

He might walk on a

treadmill to try to tire himself out, but he did not read or
socialize.

His condition had worsened in the past few years.

Carol Sue Drummond, Plaintiff’s mother, also testified at
the hearing.

Plaintiff had hypoxia at birth and was a very

difficult child with behavior and discipline problems.
struggled in school.

He

She confirmed his difficulty trying to

retain information for the GED exam.

She also said that even

though Plaintiff lived on his own from time to time he did not
function well.

She did many things for him during those times.

She also stated that his sleep disorder had gotten progressively
worse.

Even before, he could work only if he was around people

he knew well, and in a situation where he could miss work without
suffering consequences.

He had never been able to work in a

structured environment.

She also testified that he kept to

himself when family members came to visit and that he had no
social skills at all.

(Tr. 44-49).
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III.

The Medical Records

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

The pertinent records - those

relating to Plaintiff’s two statements of error - can be
summarized as follows.
Plaintiff underwent a comprehensive psychological
examination on December 24, 2007, after being admitted to the
hospital because he had been engaging in threatening behavior.
He was taking Prozac and Seroquel at the time and was also
drinking heavily (although mostly on the weekends).
taking the Seroquel to help him sleep.
ordered substance abuse treatment.

He was

He had undergone court-

The diagnoses included a

depressive disorder and various substance abuse disorders.
GAF on admission was rated at 30.

He was discharged four days

later with a recommendation that he obtain counseling.
his GAF had improved to 60.

His

By then,

(Tr. 239-46).

Notes from Dr. Lloyd, Plaintiff’s family doctor, show that
during 2011 Plaintiff reported extreme difficulty concentrating
and focusing (Tr. 273) and that he was being prescribed
Wellbutrin and Seroquel for an affective psychosis and ADHD.
was also recommended for a neuropsychological examination.
277).

He

(Tr.

Other symptoms he reported included fatigue, shortness of

breath, and disturbances of thinking.

His physical exams were

generally normal.
Dr. Della Mora performed a comprehensive neuropsychological
examination of Plaintiff about which she reported to Dr. Lloyd in
a letter dated July 2, 2011.

She first noted that Plaintiff had

suffered hypoxia at birth and again due to drug overdoses.
also had a concussion in a car accident at age 22.

He

He had been

sober for three years, but admitted to significant substance
abuse between ages 25 and 34.

He described problems with

auditory comprehension, word finding, slurred and stuttered
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speech, reading comprehension, managing finances, attention and
concentration, learning, short-term memory, and problem solving
abilities.

He disliked being around people.

He had been in

special education in middle school.
Dr. Della Mora next described the testing she did and noted
that during testing, Plaintiff was cooperative and motivated but
may not have put forth his full effort on some tests (but she
attributed that to “the level and chronicity of his psychiatric
distress” and not to conscious or deliberate malingering).

He

struggled most with auditory attention, verbal conceptualization,
attention to visual detail, and complex psychomotor speed
involving working memory.

His auditory working memory was

moderately to severely impaired.

Written expression and

listening comprehension were also severely impaired.

He also had

problems sustaining concentration and his immediate and delayed
memory were severely impaired as well.

Dr. Della Mora also noted

objective evidence of severe depression and anxiety.

These

conditions interfered with his cognitive functioning and
undermined his functional status.
Summing up all of these results, Dr. Della Mora said that
Plaintiff could not return to gainful employment and was
permanently disabled.

She suggested a number of other tests as

well as consultation with a sleep medicine specialist “in light
of the magnitude and chronicity of his sleep difficulties.” She
said that if his neurobehavioral difficulties improved, he might
be a candidate for employment.

(Tr. 355-59).

Finally, the record was reviewed by state agency physicians.
Dr. Lewin, a psychologist, concluded that Plaintiff could work in
a low pressured work environment where duties were routine and
that he could interact superficially with others.
follow 1-3 step instructions.

He could also

Dr. Lewin appeared to reject Dr.

Della Mora’s opinion because “statements given by Dr. Mora are
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reserved for the commissioner of SSA.”

(Tr. 70-73).

Another

reviewer, Dr. Hill, concluded that Plaintiff suffered from severe
organic mental, affective, and anxiety-related disorders, made
the same observation about Dr. Della Mora’s opinion as did Dr.
Lewin, and noted that Plaintiff should work in an environment
with no more than occasional changes to routine and where changes
could be explained and he had time to process them.

Also, he

should avoid jobs with strict time or production demands.

(Tr.

84-88).
IV.

The Vocational Testimony

George Coleman III was the vocational expert in this case.
His testimony can be found at pages 49-54 of the administrative
record.
Mr. Coleman was asked to categorize Plaintiff’s past work.
He said that his only job was that of drywall sander, a job which
is either light or medium and unskilled.

If he performed it as

he and his mother described, because of his intermittent
attendance, it would not qualify as substantial gainful activity
but as an accommodated work setting.
Mr. Coleman 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
was limited to routine assignments no greater than three steps
and who worked best with minimal interactions from others.

Mr.

Coleman gave examples of three jobs that such a person could
perform, including hand packer, bench assembler, and warehouse
checker.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1323 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff

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met the insured status requirements of the Social Security Act
through June 30, 2011.

Next, he found that Plaintiff had not

engaged in substantial gainful activity since his alleged onset
date of June 1, 2010.

Going to the second step of the sequential

evaluation process, the ALJ determined that Plaintiff had severe
impairments including depression, anxiety, a learning disorder,
and a sleep disorder.

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 light exertional level but that he was
limited to routine assignments with no greater than three steps
and worked best in isolation with minimal interaction with
others.

He was able to remember locations and work-like

procedures.
The ALJ next concluded that Plaintiff had no past relevant
work.

However, he also determined that Plaintiff could do

certain jobs identified by the vocational expert, including hand
packager, bench assembler, and warehouse checker.

The ALJ

further found that such jobs existed in significant numbers in
the local and national economies.

Consequently, the ALJ

concluded that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises these
issues: (1) the ALJ erred in failing to accord proper weight to
Dr. Della Mora’s opinion; and (2) substantial evidence does not
support a finding that Plaintiff can perform sustained work
activities.

These issues are evaluated under the following legal

standard.
Standard of Review.

Under the provisions of 42 U.S.C.

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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

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).
A.

Dr. Della Mora’s Opinion

Plaintiff’s first assigned error relates to the ALJ’s
decision not to credit Dr. Della Mora’s opinion about Plaintiff’s
ability to work.

Plaintiff points out that Dr. Della Mora is a

specialist whose opinions are usually entitled to more weight
than those of non-specialists, and that the ALJ relied on
incorrect factors in giving her opinion little weight.

He

specifically notes that no other examining or treating source
contradicted her findings.

In response, the Commissioner argues

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that the reasons given by the ALJ were sufficient.
The ALJ said the following about Dr. Della Mora’s report:
Dr. Della Mora does not have a longitudinal treating
relationship with the claimant.... With not having a
treating relationship, she based her opinion primarily
on the claimant’s subjective complaints and testing
results, which she even indicated should be interpreted
with caution. The vague and conclusory opinion is not
supported by evidence of record. Additionally, Dr.
Della Mora speaks to issues that are reserved to the
Commissioner.... Therefore, the undersigned gives this
opinion little weight.
(Tr. 20-21).

The ALJ then purported to accept and adopt the

opinions of the state agency experts, Drs. Lewin and Hill, as
“consistent with the medical evidence of record.”

(Tr. 21).

Interestingly, the ALJ did not summarize either of those
opinions, and there are fairly significant inconsistencies
between his RFC assessment and theirs; for example, the ALJ made
no mention of any restriction to a low-pressured work
environment, something present in Dr. Lewin’s restrictions, nor
to a similar restriction (no jobs with strict production or time
demands) described by Dr. Hill.
The Court agrees with Plaintiff that the record does not
support the reasons given by the ALJ for rejecting Dr. Della
Mora’s opinions.

It is simply too conclusory to say that because

a neuropsychologist (or any other mental health professional)
places some weight on the patient’s description of his or her
symptoms, any such opinion is automatically suspect.

In fact,

Dr. Della Mora did an extensive amount of testing and observing,
as stated in her report, and appears to have relied very little
on uncorroborated statements of symptoms made by Plaintiff.
As to the testing results, Dr. Della Mora did say they were
somewhat questionable, but she attributed that to Plaintiff’s
underlying psychological conditions, and there is no evidence to
the contrary.

Again, she was fully aware of the need to evaluate
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some of the test results more critically due to that factor, but
she still reached conclusions based on the totality of her
testing and observations, and the ALJ was not free to substitute
his judgment for hers as to the validity of those conclusions.
Finally, although Dr. Della Mora did make a statement about
employability, that is not the crux of her opinion.

She

described many specific functional limitations which the ALJ does
not discuss at all, such as problems with word memory, motor
functioning, concept formation, problem solving, speed of
information processing, semantic fluency, and working memory.
Even the state agency reviewers credited these findings to some
extent by suggesting pace-based restrictions, and, again, there
is no contradictory evidence to support the ALJ’s decision that
no such restrictions exist.

This is, to some extent, an Ealy

problem (see Ealy v. Comm’r of Social Security, 594 F.3d 504 (6th
Cir. 2010)) because, as in that case, the record supports the
proposition “that speed of [Plaintiff’s] performance could not be
critical to his job.”

Id. at 516.

This limitation should have

been conveyed to the vocational expert, but was not.

For all

these reasons, the case should be remanded for a more thorough
consideration of Dr. Della Mora’s report and of the opinions
expressed by the state agency reviewers.
B.

Employment

Plaintiff’s second claim of error is that the ALJ failed to
factor many limitations into his residual functional capacity
finding.

Those limitations found in Dr. Della Mora’s report are

addressed above and need not be discussed here.

Plaintiff also

argues, however, that his sleep disorder and fatigue, which the
ALJ found to be severe, imposed work-related limitations which
the ALJ did not mention in the hypothetical questions posed to
the vocational expert nor include in his RFC finding.

The

Commissioner responds to this claim by stating only that “[t]he
evidence does not support Plaintiff’s allegations of additional
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limitations.”

Memorandum in Opposition, Doc. 13, at 11.

Here, the ALJ specifically found Plaintiff’s sleep disorder
to be a severe impairment, meaning that, by definition, it
imposed more than slight limitations on the Plaintiff’s ability
to do work-related activities.

See 20 C.F.R. §404.1521(a).

But

the ALJ does not appear to have included any functional
limitations from the sleep disorder into his RFC finding.

Here,

as in Olilla v. Colvin, 2014 WL 7238128, *3 (W.D. Mo. Dec. 17,
2014), the Commissioner “neither cites record evidence resolving
this patent inconsistency, nor explains whether the inconsistency
amounts to harmless error.”

This is also an issue which should

be addressed on remand.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. §405(g), sentence four.
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 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
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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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