Primmer v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Defendant. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 11/19/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Trina M. Primmer,

:

Plaintiff,

:

v.

:

Case No. 2:14-cv-2245

:
Commissioner of Social Security,

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Trina M. Primmer, 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

June 14, 2011, and alleged that Plaintiff became disabled on
January 10, 2011.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on January 3, 2013, and a supplemental video hearing on May
16, 2013.

In a decision dated July 19, 2013, the ALJ denied

benefits.

That became the Commissioner’s final decision on

September 16, 2014, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on February 5, 2015.

Plaintiff filed her

statement of specific errors on March 12, 2015, to which the
Commissioner responded on May 12, 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 41 years old at the time of the second
administrative hearing (she did not appear at the first) and who
has a GED, testified as follows.

Her testimony appears at pages

57-77 of the administrative record.
Plaintiff first testified that, after she got her GED, she
took classes to be a nurse’s aide and got a certification in that
area.

She was living with family members and had no income other

than food stamps for her daughter.

She had worked through the

Department of Job and Family Services after her alleged onset
date, which was a requirement for receiving benefits.

Her job

was removing staples and paper clips from papers which were to be
shredded.

She worked 25 to 30 hours per week.

The job was made

more difficult due to her anxiety in being around people and she
ended up being sanctioned.
Prior to that, Plaintiff had worked as a home health aide.
Her job was to care for her mother-in-law, a job she held for
twelve years.
homes.

Before that, she had worked in several nursing

She also stopped working as a home health aide due to

anxiety interfering with the accomplishment of her goals.
In response to a question asking about her emotional health
since that time, she said that she could not do her normal
activities and often felt overwhelmed.

She did not help with

housework very much and could not complete tasks.

Plaintiff

described having panic attacks which affected her ability to
breathe.

She had not had one in several months but had stayed at

home for most of that time.

Her only trips outside the home were

to go to the grocery store with her sister and occasionally to
attend an event of her daughter’s.

She testified to having

racing thoughts at night and getting only two or three hours of
sleep.

Additionally, she had nightmares.

She napped during the

day three or four times per week.
In 2012, Plaintiff was hospitalized for depression.
condition improved with therapy after that.

Her

She had good days

and bad days and did not know why she was depressed on the bad
days.

On a bad day, she typically did not leave her room.
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That

happened once or twice a week.

Additionally, she had crying

spells almost every day and suffered from memory problems.
Plaintiff had headaches three or four times per week as well.
Her symptoms had gotten much worse since her husband died in May,
2011.
III.

The Medical Records

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

The Court will summarize those

records, as well as the opinions of the state agency reviewers,
to the extent that they are pertinent to Plaintiff’s statements
of error, which focus on her psychological impairments rather
than any physical limitations.
Plaintiff’s arguments about her psychological impairments
center around, first, the treatment records from Marion
Independent Physicians Association, and, second, the opinion of
state agency reviewer Dr. Matyi.

The Court will highlight these

records as well as the opinion of the consultative examiner, Dr.
Dubey.

The Commissioner’s memorandum contains a very thorough

summary of all of the records of psychological treatment.
Staring with Dr. Dubey’s report, Plaintiff saw him on
September 26, 2011.

She said that her brother, with whom she

was living, was her primary source of financial and emotional
support.

She had begun psychiatric treatment three months

previously and said that her treatment was helpful.

She reported

being generally depressed and sad but denied mood swings.

At

that time, she had no suicidal thoughts, but did have symptoms of
anxiety including shortness of breath and increased heart rate.
She told Dr. Dubey she was fired from her last job due to her
employer’s discovering that she had a misdemeanor charge.
Plaintiff interacted appropriately with others during the
evaluation and she showed neither anxiety nor distress.
memory problems were observed.

No

She had regular interaction with
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her family and could take care of herself.

Dr. Dubey diagnosed

an adjustment disorder with depressed mood as well as a
depressive disorder.

He rated her GAF at 65 and thought she

could remember and carry out simple work instructions, could
maintain attention, concentration, persistence, and pace to
perform simple tasks, that she had no history of problematic
interactions with others, and that her ability to withstand work
stress was “evidenced by, but not limited to, her job history”
and the fact that she behaved in a calm manner during the
interview.

(Tr. 402-08).

There are a number of notes dated in 2011 from Sharen Orso,
a nurse, relating to medication management.

They reflect that

Plaintiff was receiving medication for depression and to help her
sleep.

She appeared to be generally normal when seen, although

she did report some symptoms such as difficulty sleeping, and she
was tearful at times. (Tr. 425-32).
The notes from Marion Independent Physicians Association
show variation in Plaintiff’s condition and complaints over time.
A few examples will illustrate that point.

On June 28, 2012, the

notes describe Plaintiff as having some anxiety, but “overall her
mood is okay.
reported.”

Sleep and appetite maintained; no serious problems

A month later she described depression most of the

day, but said her symptoms had improved since the last visit.
She intended to move into her own house if she was approved for
disability benefits.

She did report memory and concentration

problems as well as sleep disturbance.
described as “fair.”

Her motivation was

In October, she was cooperative and engaged

in the interview and her thought process was coherent and
conversant.

She said she had been more “weepy” lately.

Yet

another note said she reported stable mood, symptoms controlled,
and stress manageable.

Plaintiff did report some suicidal

thoughts in 2012 and expressed a willingness to go to the
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hospital, which she did.

She was improved after one hospital

stay, with fewer suicidal thoughts and less anxiety and
depression.

Notes also showed intact immediate and recent memory

and judgment.

At one point, apparently early on in her

treatment, her GAF was rated at 60.

Her mood was described again

as “better” in late 2012 and she reported no serious problems
with either sleep or appetite.

The same is true of a note in

early 2013, which also indicated she had been in jail for some
fines and for driving under suspension.
as stable in April, 2013.

She was again described

She took various medications

throughout this period.
The two state agency psychologists who reviewed the records
both concluded that Plaintiff’s condition did not meet any
section of the Listing of Impairments.

Dr. Tangeman found

moderate limitations in the ability to deal with detailed
instructions and said she was capable of simple tasks with
explanation for change.

(Tr. 90-93).

Dr. Matyi said that

despite some restrictions, Plaintiff could work in a setting in
which duties were routine and predictable and where changes were
well-explained and introduced slowly.

She should also not be

required to deal with the public and could actually carry out not
only simple but occasional complex instructions.
IV.

(Tr. 114-16).

The Vocational Testimony

Susan Lyon, a vocational expert, testified at the first
administrative hearing.

Her testimony begins at page 83 of the

administrative record.
Ms. Lyon began by identifying Plaintiff’s past relevant work
as a home health aide, a job which is, under the Dictionary of
Occupational Titles, a medium, semiskilled job.

However,

Plaintiff performed it at a heavy to very heavy exertional level.
Ms. Lyon was then asked to answer some questions about a
hypothetical person who could do light work with some

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restrictions, including postural restrictions and limits on
exposure to machinery and unprotected heights.

The person also

was limited to simple, routine, repetitive tasks with no
interaction with the public and occasional brief and superficial
interaction with coworkers.

According to Ms. Lyon, such a person

could not do the home health aide job, but he or she could work
as an assembler, inspector, and packer.

She gave numbers for

such jobs as they existed in the regional and national economies.
Next, Ms. Lyon was asked to assume that the person was off
task for more than 10% of the workday.
competitive jobs.

That would eliminate all

The same would be true if the person missed

more than one day of work per month on an unscheduled basis.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 2046 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 requirement of the Social Security Act
through December 31, 2015.

Next, he found that she had not

engaged in substantial gainful activity since her alleged onset
date of January 10, 2011.
Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including osteoarthritis, low back pain, obesity, anxiety, and
adjustment 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), including sections 12.04 and 12.06.
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 with some other
restrictions, and could also perform only simple, routine,

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repetitive tasks in a setting where no interaction with the
public, and only occasional brief and superficial interaction
with coworkers, was required.
The ALJ found that, with these restrictions, Plaintiff could
not perform her past relevant work, but she could do the jobs
identified by the vocational expert including assembly work
performed at a bench or table, inspection work performed at a
bench or table, and hand packaging work performed at a bench or
table.

He also concluded that these jobs existed in significant

numbers in the State of Ohio and nationally.

Consequently, the

ALJ decided that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises four
issues.

She asserts that (1) the ALJ erred by not finding that

her impairment met or equaled section 12.04 of the Listing of
Impairments; (2) the ALJ’s credibility analysis was deficient;
(3) the ALJ improperly evaluated the opinion of Dr. Matyi; and
(4) the ALJ should have obtained testimony from a psychologist or
psychiatrist. These issues are considered under the following
legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

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
Richardson v. Perales, 402

adequate to support a conclusion'"

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

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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.

Listing Section 12.04

Plaintiff’s first argument is that her psychological
impairments met or equaled the requirements of section 12.04 of
the Listing.

In particular, she asserts that the criteria found

in section 12.04(B) were satisfied.

The Commissioner disagrees,

asserting that substantial evidence supports the ALJ’s finding on
this issue.
Like many of the sections of the Listing relating to
psychological impairments, the (B) criteria accompanying section
12.04 provide that, in order to satisfy that particular
subsection, the claimant’s impairment must produce marked
restrictions in at least two of four areas: (1) activities of
daily living; (2) social functioning; (2) maintaining
concentration, persistence, and pace; and (4) repeated episodes
of decompensation in work or work-like settings.

Plaintiff

argues that the ALJ was compelled to find, from the evidence,
that she had marked difficulties in social functioning and marked
limitations in maintaining concentration, persistence, and pace.
In support of the first part of this argument, she cites to the
anxiety she experienced when working around others in her Job and

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Family Services work assignment and to Dr. Matyi’s note that she
was markedly limited in her ability to deal with the general
public.

In support of the second, she relies on her own

testimony about memory deficiencies and fatigue, and on some
treatment notes which refer to such issues.
The ALJ specifically discussed section 12.04 and found that
Plaintiff had only moderate difficulties in social functioning
and moderate difficulties in concentration, persistence, and
pace.

If either of these determinations is supported by

substantial evidence, Plaintiff’s argument fails.
On the issue of concentration, persistence, and pace, the
ALJ noted that Plaintiff was “able to follow instructions, pay
bills, watch television, and handle money, activities that would
require some level of sustained concentration.”

(Tr. 27).

She

could also care for her daughter and pets, and “mental status
examinations have revealed intact memory, attention, and
concentration, and the claimant has demonstrated consistently
coherent and concrete thought processes.”
are all supported by the record.

Id.

Those findings

Additionally, Dr. Dubey, the

consultative examiner, thought that Plaintiff could maintain
sufficient concentration and attention to perform simple work
tasks, and both Dr. Tangeman and Dr. Matyi found only a moderate
limitation in the ability to maintain attention and concentration
for extended periods.

(Tr. 92, 115).

Neither of them found

Plaintiff’s impairments to be of Listing severity.

Given this

state of the record, the ALJ did not err in concluding that
Plaintiff did not qualify for benefits under section 12.04, even
if there was some evidence which might support a contrary
conclusion.

See, e.g., Johnson v. Chater, 1995 WL 646325, *12

(N.D. Ind. Oct. 13, 1995) (holding that the ALJ was entitled to
rely on state agency reviewers' conclusions about whether an
impairment satisfied the “B” criteria), cited with approval in
Doles v. Comm’r of Social Security, 2011 WL 2214181, *5 (S.D.
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Ohio Apr. 13, 2011), adopted and affirmed 2011 WL 2214144 ( S.D.
Ohio June 7, 2011).
B.

The Credibility Finding

In her second statement of error, Plaintiff contends that
the ALJ erred in determining that her testimony concerning the
severity of her symptoms was not fully credible.

She argues

that, in fact, the medical records fully corroborate the way in
which she described her symptoms and that the ALJ engaged in a
selective reading of the record when he decided otherwise.

She

asks for a remand so that a proper determination as to her
credibility can be made.
A social security ALJ is not permitted to reject allegations
of disabling symptoms, including pain, solely because objective
medical evidence is lacking.

Rather, the ALJ must consider other

evidence, including the claimant's daily activities, the
duration, frequency, and intensity of the symptoms, precipitating
and aggravating factors, medication (including side effects),
treatment or therapy, and any other pertinent factors.
§404.1529(c)(3).

20 C.F.R.

Although the ALJ is given wide latitude to make

determinations about a claimant’s credibility, the ALJ is still
required to provide an explanation of the reasons why a claimant
is not considered to be entirely credible, and the Court may
overturn the ALJ’s credibility determination if the reasons given
do not have substantial support in the record.

See, e.g. Felisky

v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
The ALJ made the following findings from the record.

First,

he noted that the medical records did not fully corroborate
Plaintiff’s complaints.

Part of that finding involved a

consideration of the evidence of physical limitations, a matter
which Plaintiff does not discuss in her statement of errors.

In

that regard, the ALJ, after discussing the medical records at
length, concluded that the relatively normal examination findings
supported a limitation to work at the light exertional level, but
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no further.

Plaintiff does not contest this finding nor does she

argue that the ALJ did not have valid grounds for concluding that
her description of physical symptoms was not entirely credible.
Plaintiff does take issue with the ALJ’s assessment of her
psychological limitations.

Again, in the administrative

decision, the ALJ provides a comprehensive summary of the
treatment records, noting again (correctly) many normal findings.
He also discussed Dr. Dubey’s evaluation results at length,
noting that he had assigned Plaintiff a GAF of 65, which
indicates only mild symptoms, and also said that her condition
was likely to improve with treatment.

The ALJ additionally

observed that Plaintiff’s current treating source assessed her
GAF at 60 and reported a number of essentially normal findings at
the various appointments during which Plaintiff received
counseling, as well as indications that her symptoms improved at
times.

Overall, he characterized the record as containing

“generally mild” mental health findings and improvement with
medication, and described the treatment she received for both
physical and mental impairments as conservative.

(Tr. 40-41).

Finally, he examined her activities of daily living and pointed
to her ability to prepare meals, do laundry, go to the store,
attend doctors’ appointments, socialize with her family, follow
instructions, pay bills, watch television, and handle money, as
evidence that she was more functional than her testimony
indicated.
Here, Plaintiff’s complaint that the ALJ “cherry-picked” the
record and focused more on matters which detracted from her
credibility than those which supported it is simply not borne out
by a close review of the administrative decision.

While it is

true that an ALJ must consider all of the evidence in reaching a
decision, “an ALJ does not ‘cherry pick’ the evidence merely by
resolving some inconsistencies unfavorably to a claimant's
position.”

Solembrino v. Astrue, 2011 WL 2115872, *8 (N.D. Ohio
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May 27, 2011).

Further, as this Court has often said, “[b]ecause

an ALJ is charged with observing a witness's demeanor, his
findings on credibility must be accorded great weight and
deference,”

Baker v. Comm’r of Social Security, 2014 WL 3689231,

*6 (S.D. Ohio July 24, 2014), and it is simply not this Court’s
job to re-weigh the evidence.

The ALJ’s decision in this case

does not represent a selective weighing of the evidence, and it
cites to a number of factors which are both relevant to the
credibility determination and which are supported by the record.
Thus, this particular assignment of error provides no basis for a
remand.
C.

Dr. Matyi’s Opinion

As her third statement of error, Plaintiff argues that the
ALJ’s decision treated Dr. Matyi’s opinion inconsistently, both
affording significant weight to it and, at the same time,
disregarding portions of the opinion which suggested a more
restrictive residual functional capacity than that found by the
ALJ.

In particular, she quotes from a narrative statement (Tr.

115) describing Plaintiff as crying easily, being anxious around
others, being slow-paced, and having concentration difficulties
as suggesting limitations not reflected in the RFC, as well as
Dr. Matyi’s observation that any changes in the work setting
should be introduced slowly and be well-explained.

The

Commissioner responds by arguing that most of the quoted language
does not represent functional limitations, and that the ALJ
accommodated Dr. Matyi’s concern about introducing work changes
slowly by limiting Plaintiff to the performance of simple onestep or two-step tasks, in contrast to the more difficult tasks
that Dr. Matyi thought Plaintiff could perform.
The ALJ assigned great weight to Dr. Matyi’s opinion,
stating that it was consistent with the record as a whole.

He

also adopted much of her opinion about Plaintiff’s mental
residual functional capacity, although he did not specifically
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explain why the restriction on the slow introduction of changes
in the workplace was not part of that finding.

The Commissioner

is correct that the narrative observations made by Dr. Matyi are
not a residual functional capacity finding and that her opinion,
as a whole, does support the proposition that Plaintiff, while
limited, can still function in the workplace.

The Court accepts

the Commissioner’s rationale that simple instructions do not
ordinarily entail many or rapid changes in a work setting, and in
any event the evidence does not mandate such a finding.

Under

these circumstances, there is no error in the way that the ALJ
treated Dr. Matyi’s opinion.
D.

The Need for Expert Testimony

Lastly, Plaintiff argues that this case required expert
testimony in order for the ALJ to interpret properly the evidence
concerning her mental impairment.

She contends that the last

opinion on the subject of whether her impairment met or equaled
the Listing did not take into account additional evidence
concerning that impairment and that it was, in any event,
“ambiguous and contrary at best.”
at 11.

Statement of Errors, Doc. 10,

The Commissioner notes, in response, that a medical

expert need be called only when additional evidence, in the
opinion of the ALJ, might alter the findings of the state agency
reviewer, and that this is not the situation here.

The

Commissioner also points out that Plaintiff did not request such
evidence during the administrative proceedings, and that this
factor weighs against ordering a remand.
As the Commissioner points out, Social Security Ruling 96-6p
addresses the issue which Plaintiff has raised, and posits two
circumstances under which an updated medical opinion is needed:
* When no additional medical evidence is received, but
in the opinion of the administrative law judge ... the
symptoms, signs, and laboratory findings reported in
the case record suggest that a judgment of equivalence
may be reasonable; or
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* When additional medical evidence is received that in
the opinion of the administrative law judge ... may
change the State agency medical or psychological
consultant's finding that the impairment(s) is not
equivalent in severity to any impairment in the Listing
of Impairments.
On this second point, the ALJ has substantial discretion to
determine if a medical expert is needed to evaluate the new
evidence.

If the state agency opinions simply do not address a

particular impairment which might meet or equal some section of
the Listing, the failure to obtain an expert opinion as to that
issue is error, see, e.g. Cirelli v. Astrue, 751 F.Supp.2d 991
(N.D. Ill. 2010), but that is not this case.

Both Dr. Tangeman

and Dr. Matyi considered the very impairment which, according to
Plaintiff, needed additional expert evaluation.

Further, this

Ruling “explicitly grants the ALJ the discretion to determine
whether the newly-submitted evidence so changes the landscape of
the claimant's impairments that an expert could now find them to
medically equal a listing.” Johnson v. Comm’r of Social Security,
2014 WL 4798963, *8 (E.D. Mich. Sept. 26, 2014)(emphasis in
original).

The ALJ thoroughly reviewed the additional medical

records, which consisted primarily of treatment notes not all
that different from the ones generated in 2011, and did not see
the need to obtain an updated medical opinion as to the issue of
the Listing.

The Court cannot deem that to be an abuse of

discretion, and therefore finds no merit in Plaintiff’s final
statement of error.
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.
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
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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
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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