Handy v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATION re 5 Amended Complaint: It is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner of Social Security's decision. Objections to R&R due by 8/17/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/29/2015. (mas)

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

RICK L. HANDY,
Plaintiff,
Civil Action 2:14-cv-1371
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Rick L. Handy, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his
application for disability insurance benefits and supplemental security income. This matter is
before the United States Magistrate Judge for a Report and Recommendation on Plaintiff’s
Statement of Errors (ECF No. 15), the Commissioner’s Memorandum in Opposition (ECF No.
2), and the administrative record (ECF No. 11). For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
I.

BACKGROUND

In his Statement of Errors, Plaintiff advances two errors. Plaintiff first asserts that
remand is required because the administrative law judge erroneously relied upon testimony from
the vocational expert that conflicts with the Dictionary of Occupational Titles (“DOT”) without

first resolving the conflict. Second, Plaintiff submits that the administrative law judge’s failure
to mention the opinion of a state-agency psychological expert requires remand. The
Undersigned limits her discussion to evidence bearing on these contentions of error.

Plaintiff filed his application for Disability Insurance Benefits and Supplemental Security
Income on March 7, 2011. (R. at 187.) Plaintiff’s application was denied initially and upon
reconsideration. (R. at 122-136.) Plaintiff sought a de novo hearing before an administrative
law judge. Administrative Law Judge Kathleen Scully-Hayes (“ALJ”) held a hearing on January
30, 2013, at which Plaintiff, represented by counsel, appeared and testified. (R. at 26–65.)
A vocational expert, Yorma Strickland (“VE”), appeared and testified at the hearing. At
the hearing, the ALJ posed questions to the VE concerning a hypothetical individual with
Plaintiff’s age, education, past relevant work, and the all of the limitations she ultimately
included in the residual functional capacity (“RFC”) with the exception of a limitation for a
sit/stand option. The VE initially testified that the hypothetical individual could perform
Plaintiff’s past relevant work, but changed her testimony upon cross-examination. (R. at 62, 64.)
The VE further testified that the hypothetical individual with this RFC could sustain employment
and identified representative jobs such as ticket taker (DOT code 344.667-010), with
approximately 2,000 jobs in the state of Ohio or 83,000 nationally; laundry worker (DOT code
302.685-010), with approximately 5,000 jobs in the state of Ohio or 50,000 nationally; and
cashier, with 5,000 jobs in the state of Ohio or 150,000 nationally. (R. at 62-63.) When the ALJ
added the sit/stand option such that the hypothetical now reflected the RFC she ultimately
determined for Plaintiff, the VE testified that this additional limitation only eliminated the

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position of laundry worker. (R. at 63.) Upon further questioning from the ALJ, the VE testified
that her testimony was consistent with the DOT. (R. at 64.)
On March 29, 2013, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. at 10–21.) In reaching this decision, the ALJ
set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, I find that [Plaintiff] has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that he must be permitted to alternate between sitting and
standing. He can climb, balance, and stoop occasionally. He can engage in frequent
fine and gross motor manipulation. He must avoid temperature extremes; wet/humid
environments; and fumes, odors, dusts, and poor ventilation. He can perform low
stress jobs, defined as work not involving production rate pace. He can handle
occasional changes in job settings and duties. He can perform simple, routine tasks.
He can handle occasional and superficial interaction with supervisors, coworkers,
and the public. He experiences only occasional lapses in his ability to maintain
attention and concentration.
(R. at 14.)
In connection with Plaintiff’s mental RFC determination, the ALJ discussed Plaintiff’s
allegations and offered a credibility assessment. She also considered and discussed the opinions
of Plaintiff’s treating physician, Saleem Khan, M.D., and consulting examiners Drs. Swearingen
and Tanley. In addition, citing the opinion of Kristen Haskins, Psy.D., the ALJ noted that “[t]he
state-agency found moderate limitation in the capacity to interact with the public and coworkers
and accept instructions and supervisory criticism.” (R. at 15.) Finally, the ALJ explained his
reasons for assigning “substantial weight” to the opinions of Drs. Tanley and Swearingen and
“lesser weight” to the opinion of Dr. Khan. (R. at 16-17.) The ALJ’s RFC determination was
consistent with his analysis of the record evidence and his assignment of substantial weight to
the opinions of the consulting examiners.

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The ALJ relied upon the VE’s testimony to conclude that jobs exist in significant
numbers in the national economy that Plaintiff can perform. In doing so, the ALJ incorrectly
stated that based upon the RFC she set forth, the VE testified that the hypothetical individual
could perform the exemplary occupations of ticket taker, laundry worker, and cashier.1 The ALJ
also stated, “Pursuant to [Social Security Ruling 00-4p], the I have determined that the
vocational expert’s testimony is consistent with the information contained in the [DOT].” (R. at
20.) The ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act.
On June 24, 2014, the Appeals Council denied Plaintiff’s request for review and adopted
the ALJ’s decision as the Commissioner’s final decision. (R. at 1-6.) Plaintiff then timely
commenced the instant action.
II.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘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.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

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As noted above, when the ALJ added the sit/stand limitation, the VE testified that the
laundry worker position would be eliminated.
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Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
III.
A.

ANALYSIS

The ALJ’s Reliance on the VE’s Testimony
As set forth above, within his first contention of error, Plaintiff asserts that the ALJ

erroneously relied upon testimony from the vocational expert that conflicts with the DOT
without first resolving the conflict. In support of this assertion, Plaintiff first points out that the
ALJ’s reference to the laundry worker position was misplaced given that the VE eliminated that
representative occupation with the addition of the sit/stand limitation to the RFC.2 Plaintiff then
submits that it is obvious that the RFC limitation of “can handle occasional and superficial

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Plaintiff does not contend that this error, alone, is constitutes a reversible error. The
Undersigned notes, however, that the ALJ’s error in including the laundry worker position is
harmless given her reasonable reliance on the remaining positions of ticket taker and cashier.
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interaction with supervisors, coworkers, and the public,” (R. at 14), conflicts with the remaining
two representative occupations of ticket taker and cashier. Plaintiff concludes that the ALJ
therefore failed in her duty under Social Security Ruling 00-4p to resolve the apparent
inconsistencies between the VE’s testimony an the DOT and that remand is necessary to correct
this error.
As a threshold matter, the Court recognizes the potential conflict between the VE’s
testimony and the DOT that Plaintiff has raised for the first time in his Statement of Errors.
“‘[O]ccasionally’ means occurring from very little up to one-third of the time.’” S.S.R. 83-10
(1983); see also Hensley v. Astrue, 573 F.3d 263, 265 (6th Cir. 2009) (citing S.S.R. 83-10
(1983)) (“[I]n social security disability cases the word ‘occasionally’ is a term of art: it means up
to one-third of someone’s working time.”). Although the DOT does not mention the frequency
with which an individual performing work as a ticket taker or cashier would interact with people,
one might speculate that it could be more than one-third of the individual’s working time.
Nevertheless, the Undersigned finds that the ALJ did not violate her affirmative duty to
identify conflicts. Social Security Ruling 00–4p instructs that the ALJ “has an affirmative
responsibility to ask about any possible conflict between the VE and . . . evidence and
information provided in the DOT.” SSR 00–4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). “In
the Sixth Circuit, the ALJ’s duty is satisfied if he or she asks the VE whether his or her
testimony is consistent with the DOT.” Johnson v. Comm’r of Soc. Sec., 535 F. A’ppx 498, 508
(6th Cir. 2013). Here, the ALJ asked if there was a conflict, and the VE testified that there was
not. “Nothing in SSR 00–4p places an affirmative duty on the ALJ to conduct an independent
investigation into the testimony of witnesses to determine if they are correct.” Martin v. Comm’r

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of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006). Because Plaintiff’s counsel did not bring
any potential conflicts to the ALJ’s attention prior to when she rendered her decision, the ALJ
committed no reversible error. See id. (finding no reversible error where the claimant “did not
bring the conflict to the attention of the ALJ” and “the ALJ specifically asked if there was a
conflict and the uncontradicted testimony of the vocational expert indicated that no conflict
existed”); see also Beinlich v. Comm’r of Soc. Sec., 345 F. App’x 163, 168–69 (6th Cir. 2009)
(“[T]he ALJ is under no obligation to investigate the accuracy of the VE’s testimony beyond the
inquiry mandated by SSR 00–4p. This obligation falls to the [claimant’s] counsel, who had the
opportunity to cross-examine the VE and bring out any conflicts with the DOT. The fact that
[the claimant’s] counsel did not do so is not grounds for relief.” (internal citations omitted)).
Accordingly, it is RECOMMENDED that Plaintiff’s first contention of error be
OVERRULED.
B.

The ALJ’s Consideration of the Opinion Evidence
Plaintiff next submits that the ALJ’s failure to mention the opinion of a non-examining,

state-agency psychological expert requires remand. Plaintiff refers to the July 27, 2011 opinion
of Patricia Semmelman, Ph.D. Dr. Semmelman opined, among other things, that Plaintiff “can
interact occasionally and superficially and receive instructions and ask questions appropriately in
smaller or more solitary and less public to nonpublic work setting.” (R. at 74.) Plaintiff submits
that the ALJ’s failure to explicitly consider this opinion cannot be considered harmless error
given that this specific limitation was not incorporated into the RFC.
Plaintiff acknowledges that the ALJ did, however, consider a the more recent, March 17,
2012 opinion from non-examining, state-agency psychological expert Kristen Haskins, Psy.D.

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(R. at 15, 116.) Significantly, Dr. Haskins agreed with and adopted Dr. Semmelman’s earlier
opinion that Plaintiff “can interact occasionally and superficially and receive instructions and ask
questions appropriately in smaller or more solitary and less public to nonpublic work setting.”
(R. at 116.) As Plaintiff notes, although the ALJ explicitly considered Dr. Haskin’s opinion and
provided only minimal discussion, she did not state what weight she assigned to the opinion. As
noted above, the ALJ did, however, discuss the opinions of the consulting physicians at length
and assigned their opinions “substantial weight.” (R. at 17.) In assigning the opinions of
consulting physicians Drs. Tanley and Swearingen “substantial weight,” the ALJ reasoned that
“their conclusions are supported by their mental status examination findings . . . and are
consistent with the information in the treatment notes . . . .” (Id.) In addition, after discussion
the opinions of Drs. Tanley, Swearingen, and Plaintiff’s treating physician, Dr. Kahn, the ALJ
noted that he assigned Dr. Kahn’s opinion “lesser weight” reasoning as follows:
Ordinarily, a degree of deference is due treating source opinion; however, I assigned
lesser weight to treating physician Kahn’s findings of marked limitation with regard
to interacting with the public, supervisors, and coworkers and adapting to workplace
changes, as those findings are not consistent with the information in the treatment
notes.
(Id.) Notably, Plaintiff does not challenge the ALJ’s consideration and weighing of the opinions
of Drs. Tanley, Swearingen, and Dr. Kahn.
The Undersigned agrees with Plaintiff that the ALJ erred in not expressly mentioning the
opinion of state-agency reviewing physician Dr. Semmelman. See SSR 96–8p 1996 WL 374184,
at *7 (July 2, 1996) (“The RFC assessment must always consider and address medical source
opinions.”). The Undersigned finds that this error is harmless, however, because the ALJ did

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expressly consider the more recent opinion of state-agency reviewing physician Dr. Haskins,
which essentially mirrored the opinion of Dr. Semmelman. (R. at 17, 74, 116.)
The Undersigned further finds that the ALJ’s failure to explicitly assign weight to the
opinion of state-agency reviewing physician Dr. Haskins also constitutes harmless error. The
regulations provide that where, as here, the ALJ does not assign controlling weight to the
claimant’s treating physician, he or she must explain the weight assigned to the opinions of the
medical sources:
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 or psychological consultant or other program physician, psychologist, or
other medical specialist, as the administrative law judge must do for any opinions
from treating sources, nontreating sources, and other nonexamining sources who do
not work for us.
20 C.F.R. § 416.927(e)(2)(ii). Where an ALJ’s opinion satisfies the goal of § 416.927 and is
otherwise supported by substantial evidence, the failure to explicitly provide the weight assigned
is harmless. See, e.g., Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005)
(harmless error where the ALJ failed to mention or weigh the report of consultative neurologist
who only evaluated plaintiff once and was not a treating source); Dykes v. Barnhart, 112 F.
App’x 463, 467–69 (6th Cir. 2004) (failure to discuss or weigh opinion of consultative examiner
was harmless error); cf. Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010)
(explaining that the treating physician rule “is not a procrustean bed, requiring an arbitrary
conformity at all times. If the ALJ’s opinion permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating physician’s opinion, strict
compliance with the rule may sometimes be excused.”).

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Such is the case here. With the exception of a limitation to “a smaller or more solitary
and less public to nonpublic work setting,” the ALJ’s RFC determination incorporated each of
the limitations the state-agency physicians opined. (R. at 17, 74, 116.) Moreover, the ALJ’s
RFC determination was more restrictive than that opined by the state-agency reviewing
physicians in that the ALJ limited Plaintiff to performing simple, routine tasks and found that he
experienced occasional lapses in his ability to maintain attention and concentration. (R. at 14.)
Finally, the opinions of consulting examiners Drs. Swearingen and Tanley constitute substantial
evidence supporting the ALJ’s mental RFC assessment. As the ALJ pointed out, Plaintiff
reported to both examiners that he historically had no problem getting along with people and that
he got along well with co-workers and supervisors. (R. at 16-17.) Moreover, both examiners
found that Plaintiff was cooperative and responded appropriately to questions and that his social
presentation was unremarkable. (Id.) Thus, although the ALJ failed to comply with some of the
regulations’ terms, the Undersigned finds that the failure was harmless error because her
decision is supported by substantial evidence and provides sufficient discussion to allow for
meaningful review of her RFC assessment.
Accordingly, it is RECOMMENDED that Plaintiff’s second contention of error be
OVERRULED.
IV.

CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.

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V.

PROCEDURE ON OBJECTIONS

If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: July 29, 2015

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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