Blaney v. Commissioner of Social Security

Filing 28

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be overruled and judgement be entered in favor of Defendant. Objections to R&R due by 7/29/2016. Signed by Magistrate Judge Terence P. Kemp on 7/12/2016. (agm)

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

:

Plaintiff,

:

v.

:

Carolyn W. Colvin, Acting
:
Commissioner of Social Security,
Defendant.

Case No.

2:15-cv-2449

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Leslie Blaney, 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.

Her current applications (previous applications

for the same benefits were denied on May 6, 2009) were filed on
September 8, 2009 and alleged that Plaintiff became disabled on
October 1, 2004.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge,
and in a decision dated February 16, 2012, the ALJ issued a
decision denying benefits.

The Appeals Council granted review

and remanded the case to the ALJ, who held another hearing on
December 10, 2013.

He again denied benefits in a decision dated

February 21, 2014, and that became the Commissioner’s final
decision on April 24, 2015, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on August 28, 2015, and supplemented the
record with additional hearing transcripts in a filing made on
February 10, 2016.

Plaintiff filed her statement of specific

errors on February 23, 2016, to which the Commissioner responded

on June 1, 2016.

Plaintiff filed a

reply brief on June 16,

2016, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearings

The first hearing at which Plaintiff testified was held in
connection with her prior application for benefits and occurred
on April 21, 2009.

There, Plaintiff testified that she was born

in 1966 (making her fifty years old as of the date of this
decision) and that she had a high school diploma.

At the time of

that hearing, she was receiving child support for three children
and also qualified for food stamps.
lived with her also had a child.

One of her daughters who

Plaintiff was employed at that

time at a pizza shop where she worked between 20 and 25 hours per
week.

She had earned about $10,000.00 in each of the two years

preceding the hearing.
Before going to work at the pizza shop, Plaintiff had worked
at a Taco Bell restaurant.

She also worked for a short time with

Volunteers of America as a thrift store cashier.

Lastly, she

worked for the Pickaway County Community Action Organization
doing construction work like building wheelchair ramps and
installing insulation.

She had lost several jobs due to

attendance issues, which were caused by her health problems.
Plaintiff said that her most limiting impairment at that
time was overall body weakness.

She also suffered from mood

swings, slept about twelve hours per night, and also napped
during the day.

She described difficulty being around others and

said that stress made her angry.

Plaintiff also had anxiety

which sometimes prevented her from leaving the house.
Additionally, she testified to constant abdominal and back pain.
Both walking and sitting made the pain worse.

She thought she

could not lift more than ten pounds, could not be on her feet for
more than three hours, and could not walk more than one block
without resting.
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When asked about medications, Plaintiff said she had been
prescribed lithium and Xanax but stopped taking them because they
did not improve her mood swings.

She had used street drugs and

alcohol in the past as a way of self-medicating but no longer did
so.

She did some cooking and cleaning as well as laundry.

(Tr.

1109-32).
The next hearing was held in April, 2011, in connection with
the current application for benefits.

Plaintiff told the ALJ she

had not worked since September 3, 2009, and had not looked for
work since then.

She was still having back problems, anxiety,

anger, depression, and stomach problems, and also reported
swelling in her legs and recurring outbreaks of shingles.

Her

condition had worsened since the prior hearing, and she had to
use a walker more and needed help with personal care.

Her

anxiety attacks occurred daily and she used inhalers for asthma
several times a day.
home.

She was unable to use the stairs in her

She left home only to go to medical appointments.
On a typical day, Plaintiff would crochet, color, and do

puzzles with her grandchildren.
household chores.

Her daughter did most of the

There were days when Plaintiff’s pain was so

excruciating that she was unable to move.

(Tr. 1052-75).

A third hearing was held several months later, on November
30, 2011.

There, Plaintiff testified that since the previous

hearing she had gone to a liver specialist (she has hepatitis C)
and undergone a breathing test.
for cardiac evaluation.
swelling.

She was also going to be sent

She had to elevate her legs due to

When she left her house, she walked with a cane.

Finally, she said she had never gone a full week without having a
day when she was crying or exhausted.

(Tr. 1088-94).

The last of the four administrative hearings was held on
December 10, 2013.

Plaintiff was first asked about her job with

the Pickaway County Community Action Organization.
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She testified

that she did mostly weatherization and renovation work, including
pouring concrete and welding.

She said that her back was worse,

and also that she had urinary incontinence.
elevating her legs on a daily basis.

She was still

She also expressed feelings

of hopelessness at the hearing and said she spent most of her
time in bed sleeping.
III.

(Tr. 59-70).
The Medical Records

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

The pertinent records - those

relating to Plaintiff’s psychological conditions - can be
summarized as follows.
It is important to preface this summary by referring to
certain findings made by the ALJ who decided Plaintiff’s earlier
claim.

He concluded that Plaintiff had the following mental

residual capacity: she could understand, remember, and carry out
simple instructions and could deal with routine changes, and she
was also capable of interacting with others on a superficial
basis.

However, she was “unable to attend or concentrate for

eight hours to a task that allows no variability in the
workplace.”

Lastly, she could not deal with a work setting where

frequent supervisory interaction was required although she could
tolerate routine instructions and criticism.

(Tr. 102).

Both

state agency psychologists who reviewed Plaintiff’s current
application - Drs. Tangeman and Marlow - adopted that mental
residual functional capacity finding.

(Tr. 741, 757).

Those

evaluations of the record were done in 2010.
The ALJ focused on the medical evidence which post-dated the
prior decision.

He cited to Exhibits 29F, 33F, 30F, 31F, and 32F

as evidence of changes in Plaintiff’s condition since 2009, and
also discussed extensively the consultative report of Dr.
Donaldson and treatment notes found at Exhibit 34F.

Exhibits 29F

and 33F relate to Plaintiff’s physical impairments, and Exhibits
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30F, 31F and 32F are the reports from Drs. Tangeman and Marlow,
which have already been discussed, and which adopted the prior
mental RFC.

Exhibit 34F, however, consists of 35 pages of

treatment notes.

Here is, briefly, what those notes say.

Plaintiff was seen on March 4, 2010.

She said the last two

months had not been good and that she had almost no motivation.
She was sleeping a lot.

Plaintiff said she had taken Abilify for

2-3 months but it did not help her.
Risperdal.

She was started on

Her next appointment was four months later, when she

said she had been doing fairly well until recently and that she
had gone to Netcare for help.
to try Ritalin for her ADHD.

Her sleep was “ok” and she asked
In August of 2010, she said that

the Ritalin had helped her and that she was having more good
days.

Her Ritalin dosage was increased.

In October, 2010, she

appeared discouraged and upset, but had run out of medication.
The prior month, she told her regular doctor that her mood was
not so bad and that she was not depressed unless she forgot her
medications.

The only thing of significance noted on a January

20, 2011 note was that she was afraid to go out because she lived
in a scary neighborhood.

(Tr. 759-94).

It is worth noting that

at the Netcare assessment which Plaintiff reported, she was given
a GAF of 28, and she stated that she “wishe[d] she were not here
anymore” although she did not have a specific plan to harm
herself.

She reported a continual depressed mood, poor appetite,

and staying in bed all day.

(Tr. 814-21).

Dr. Donaldson performed his consultative evaluation on May
10, 2011.

He described Plaintiff as agitated but cooperative.

She was attending counseling every other month.

Her affect was

anxious and depressed but she denied compulsive or impulsive
behavior.

She reported problems with sleeping and with her

appetite and said she cried daily.

Dr. Donaldson diagnosed major

depressive disorder and generalized anxiety disorder and rated

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Plaintiff’s GAF at 45.

He thought she had some limitations due

to her disorders but not in the area of understanding,
remembering, and carrying out one- or two-step job instructions.
None of her limitations were more than moderate and he attributed
at least some of them to chronic pain, Plaintiff’s educational
level, and her intellectual ability.

(Tr. 822-28).

In an

addendum to his report, Dr. Donaldson stated that her GAF rating
had been based on a number of factors other than diagnosed mental
impairments, including unemployment, inadequate finances,
criminal history, medical problems, and history of substance
abuse.

(Tr. 847).
IV.

The Vocational Testimony

Vocational testimony was taken at several of the
administrative hearings, but the Court will summarize only the
testimony given at the most recent hearing.
George Coleman III was

At that hearing,

called to testify as a vocational expert.

His testimony begins at page 70 of the administrative record.
Mr. Coleman described Plaintiff’s past employment as a
construction laborer as unskilled and usually done at the very
heavy exertional level, although it was a medium strength job the
way Plaintiff performed it.

He was then asked if someone who

could work at the light exertional level, who could crouch and
stoop frequently, who was limited to the performance of simple,
repetitive tasks in a static work environment where there were
infrequent changes and duties of process that did not require
more than occasional contact with others, and who could maintain
attention and concentration for only two-hour segments, could do
that job.

He said that such a person could not do so.

Next, Mr. Coleman was asked if there were other jobs which
someone so limited, and with Plaintiff’s background, could
perform.

In response, he identified jobs like mail room clerk,

presser, and routing clerk.

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As part of a second hypothetical question, the ALJ described
someone who, again, could work at the light exertional level, but
who could not sit more than three hours at a time, stand more
than three hours in a day (and only one hour at a time), or walk
for more than two hours in a day (and, again, only one hour at a
time).

The person was limited to occasional overhead reaching,

pushing, and pulling and could not climb ladders, ropes, or
scaffolds or be exposed to extreme cold or atmospheric
pollutants.

The person could occasionally be exposed to

unprotected heights, dangerous machinery, humidity and wetness,
extreme heat, and vibrations.

Finally, the person could do only

simple, repetitive tasks with only occasional contact with
others.

Mr. Coleman said that such a person could not do any

light jobs, but at the sedentary level, he or she could be a
table worker, address clerk, or cutter of press reports or
newspaper articles.

Only about 374 of these three jobs existed

in the regional economy, although there were over 60,000 such
jobs nationally.

Mr. Coleman did note that these were

representative positions, and he estimated that the person
described in the question could do a percentage of the 4,800
unskilled sedentary jobs in the regional economy (although it is
not clear if he said that percentage was one-third or twothirds).

Adding the previous limitation about working in a

static environment would not alter his conclusions.
Next, Mr. Coleman was asked to consider limitations set out
in the report from the Ohio Department of Job and Family
Services.

He said that someone with those limitations could not

be employed.

He was then asked how needing to alternate between

standing and sitting affected employability, and said that it
would depend on whether alternating positions put the worker off
task or distracted others.

Changing positions every fifteen

minutes usually required accommodation from the employer.

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Mr. Coleman was also questioned by Plaintiff’s counsel about
what a limitation to simple, repetitive tasks meant.
that there was no variability in such work.

He agreed

Also, he said that

elevating legs above heart level, or even to 90 degrees, was not
consistent with employment, and the same was true for more than
four to eight hours a month of absenteeism.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1843 of the administrative record.

The important findings in that

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

Next, the ALJ found that Plaintiff had

not engaged in substantial gainful activity since her alleged
onset date of October 1, 2004.

Going to the second step of the

sequential evaluation process, the ALJ concluded that Plaintiff
had severe impairments including degenerative disc disease,
ovarian cysts, bipolar disorder, anxiety disorder, polysubstance
abuse, persistent lower extremity edema, obesity, hepatitis C,
asthma, fibromyalgia, and diabetes mellitus.

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 lift and carry at the light exertional level, but she could
not sit more than three hours at a time, stand more than three
hours in a day (and only one hour at a time), or walk for more
than two hours in a day (and, again, only one hour at a time).
She was limited to occasional overhead reaching, pushing, and
pulling and could not climb ladders, ropes, or scaffolds or be
exposed to extreme cold or atmospheric pollutants.

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She could

occasionally be exposed to unprotected heights, dangerous
machinery, humidity and wetness, extreme heat, and vibrations.
Finally, Plaintiff could do only simple, repetitive tasks in a
relatively static work environment where there were infrequent
changes to duties or processes and where she would have only
occasional contact with others.

With these restrictions, the ALJ

concluded that although Plaintiff could not perform her past
relevant work, Plaintiff could perform the sedentary jobs
identified by the vocational expert, including table worker,
addresser, and cutter/paster, and that jobs like these existed in
significant numbers in the regional and national economies.
Consequently, the ALJ determined that Plaintiff was not entitled
to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises these
issues: (1) the ALJ erred by failing to apply the prior ALJ’s
mental RFC finding in the absence of proof that her mental
condition had improved since the time of that decision; and (2)
the ALJ did not properly consider and weigh the state agency
reviewers’ opinions about Plaintiff’s mental health functioning.
These issues are evaluated 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).
Plaintiff’s two statements of error, though stated
separately, are sufficiently related that the Court may discuss
them together.

Plaintiff begins by noting that the Court of

Appeals, in Drummond v. Comm’r of Social Security, 126 F.3d 837,
842 (6th Cir. 1997), held that under the doctrine of
administrative res judicata an ALJ is required to adopt the
findings of a prior ALJ “[a]bsent evidence of an improvement in a
claimant's condition ....”

This requirement has been

incorporated into Acquiescence Ruling 98-4(6).

She then points

out that in Section 1-5-4-62 of the Social Security
Administration’s Hearings, Appeals and Litigation Law Manual
(HALLEX), guidance is provided about how to implement the
Drummond ruling.

In pertinent part, that guidance states that a

finding of improvement must be based on evidence that is both
“new” and “material.”

In this context, “new” simply means

evidence not presented to the prior adjudicator.

“Material”

evidence is evidence that “both differs from that presented in
the prior claim and warrants a finding different than that made
in the decision on the prior claim.”

Additionally, the ALJ’s

decision “must refer to the AR [Acquiescence Ruling 98-4(6)] and
include rationale indicating why any new evidence is or is not
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material to a particular finding.”
According to Plaintiff, although the ALJ said that there was
new evidence which allowed him to make a different finding as to
Plaintiff’s mental residual functional capacity, he never
explained why that evidence was material and warranted such a
change.

In addition, Plaintiff argues, he did not adequately

explain why he gave little weight to the opinions of Drs.
Tangeman and Marlow, both of whom agreed with the finding made by
the prior ALJ concerning Plaintiff’s mental residual functional
capacity.

Relying on the fact that prior vocational experts

testified that, with those restrictions - specifically, the
inability to focus on simple, repetitive, and unchanging tasks
for eight hours - are work-preclusive, Plaintiff contends that,
at a minimum, the case should be remanded for further
consideration of whether there is new and material evidence
warranting a departure from the prior ALJ’s finding.
The Commissioner does not disagree with Plaintiff’s summary
of the applicable law.

However, the Commissioner argues that the

ALJ spent six pages of his decision discussing all of the new
evidence which post-dated the prior ALJ’s decision and reasonably
concluded that it showed improvement in her mental condition.

In

particular, the Commissioner points to evidence that a
prescription for Ritalin improved Plaintiff’s ability to
concentrate and that most of the records showed that Plaintiff’s
primary complaints were about physical, rather than mental,
impairments.

In the Commissioner’s view, Dr. Donaldson’s

evaluation, which also post-dated the prior decision, provides
further support for the ALJ’s findings.

Finally, the

Commissioner argues that this new evidence also provided ample
support for the ALJ’s decision to give only little weight to the
opinions of Drs. Tangeman and Marlow.
In the introductory portion of his decision, the ALJ cited
Drummond and AR 98-4(6) and correctly explained the applicable
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law.

He then stated his conclusion - that “the current record

... indicates a change in her mental status as compared to her
condition at the time of the prior decision.

Such changes

therefore provide a basis for a different finding as to the
severity of the claimant’s impairments and residual functional
capacity.”

(Tr. 23).

As noted above, the ALJ then identified

one exhibit, the 35 pages of treatment notes, as containing that
new evidence showing improvement.
According to the ALJ, the post-2009 record showed that
Plaintiff “received sporadic and inconsistent treatment for
bipolar disorder and anxiety.”

(Tr. 35).

Increases in her

symptoms were only “temporary” and the records “generally fail to
document consistent abnormal mental status examinations.”

Id.

There were instances of noncompliance with treatment and gaps in
her treatment history.

(Tr. 36).

The notes did not document

objective findings and Plaintiff “apparently had improvement in
concentration with Ritalin ....”

Id.

Further, her psychiatrist

“failed to routine (sic) document serious mental impairment or
abnormalities.”

Id.

The ALJ also noted that Dr. Donaldson’s

report documented an ability to function in various areas; that
is, “[t]he credible, objective evidence, such as the findings of
consultative psychologist Dr. Donaldson, does not support serious
limitation in the claimant’s functioning.”

(Tr. 36).

A careful reading of Plaintiff’s statement of errors shows
that Plaintiff does not dispute that the ALJ accurately
summarized the evidence of her post-2009 treatment for mental
impairments.

She does not argue, in so many words, even that the

record would not support a finding of improvement in her mental
condition.

Rather, to quote her brief directly, she asserts that

the ALJ “never explained which new and material evidence
supported a finding of a ‘change,’ what the ‘change’ was, nor did
he explain his rationale for redetermining the entire mental
health portion” of the prior decision.
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Statement of Errors, Doc.

21, at 9.

She characterizes the decision as a “bald, unexplained

assertion that [the] claimant’s condition has ‘changed’” and
argues that the ALJ has deprived the Court of the ability to
conduct a “meaningful review” of the decision.

Id.

In other

words, she makes an argument based on the alleged failure to
articulate an adequate basis for the ALJ’s decision, rather than
an argument that the decision he reached does not have
substantial support in the record.

To be fair, she makes a brief

statement in her reply (Doc. 27) that the record does not support
the ALJ’s decision, but that argument is not fleshed out in any
meaningful way.
The Court cannot accept Plaintiff’s characterization of the
ALJ’s decision.

The ALJ correctly articulated the governing

legal standard and stated that his decision was based on new
evidence showing an improvement in Plaintiff’s medical condition.
His review of the post-2009 records, which he cited as the basis
of his decision, shows that he gave various reasons for
concluding that Plaintiff’s mental condition was not as serious
as it was when the prior ALJ made his decision.

He did so in a

way that permits this Court to understand the basis for his
ruling, and, to the extent that Plaintiff has raised the issue of
substantial evidence, in a way that finds support in the record.
In particular, the issue which Plaintiff has focused on is her
alleged inability to concentrate on repetitive tasks, but the ALJ
specifically cited to treatment records showing that she had been
prescribed Ritalin for her ADHD and that she had improvement in
that area.

Given this record, the ALJ was justified both in

finding that there had been improvement - the prerequisite for
avoiding the res judicata effect of the prior decision - and that
the prior state agency reviewers’ opinions, which did not factor
in this evidence, were entitled to little weight.

Under these

circumstances, the Court finds no merit to either of Plaintiff’s
statements of error, and will recommend that they be overruled.
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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
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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