Riley v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION re 3 Complaint filed by Kaitlyn Nicole Riley in that it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that judgment be entered in favor of the defendant Commissioner of Social Security. Objections to R&R due by 9/26/2016. Signed by Magistrate Judge Terence P. Kemp on 9/7/16. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kaitlyn Nicole Riley,

:

Plaintiff,

:

v.

:

Commissioner of Social Security,
Defendant.

Case No.

2:15-cv-2865

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Kaitlyn Nicole Riley, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for supplemental security income.

That

application was filed on August 28, 2012, and alleged that
Plaintiff became disabled while a child under the age of 18 (she
turned 18 after her application was filed).
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on April 14, 2014.
denied benefits.

In a decision dated April 25, 2014, the ALJ

That became the Commissioner’s final decision

on July 29, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on December 23, 2015.

Plaintiff filed a

statement of specific errors on January 25, 2016, to which the
Commissioner responded on May 18, 2016.

Plaintiff filed a reply

brief on June 6, 2016, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearings

Plaintiff, who was 18 years old as of the date of the
hearing and who graduated from high school, testified as follows.
Her testimony appears at pages 37-52 of the administrative
record.

Plaintiff completed high school in 2013.
parents and two siblings.

She lived with her

While in school, she had an IEP which

provided her with assistance in comprehending written materials.
With that help, she earned Cs or above in all of her classes.
She was not able to pass the proficiency tests, however.
Since graduation, she had been attempting to find work with
the help of Athens County.

She did well working at a child care

center but was overwhelmed by being a bagger at a Kroger store.
A job at a Ponderosa, wiping tables, was harder for her than the
bagging job.

At each location, she was accompanied by a job

trainer who explained things to her.

She believed she could work

successfully as a childcare worker.
Plaintiff testified that she was nervous around some people,
but she did have a boyfriend whom she went bowling with and rode
a four-wheeler.

She did not feel comfortable being home alone

after dark.
As far as chores were concerned, Plaintiff did cleaning and
dusting.

She also watched television and helped her mother with

babysitting.

Occasionally she became irritable being around

people.
Plaintiff’s mother also testified at the administrative
hearing.

She first said that Plaintiff had not been socially

active prior to her relationship with her boyfriend.

Plaintiff

had separation anxiety and did not like being away from her
mother.

Plaintiff would sometimes vomit before leaving the

house, and she would text her mother frequently when she was
away.

Plaintiff was able to prepare lunch and change diapers for

the children whom her mother babysat.

Plaintiff had been unable

to pass the test to get a learner’s permit.

She had always had

difficulty comprehending both written and oral information.
52-57).
Finally, Plaintiff called Margaret Casey, a support
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(Tr.

specialist with the Athens County Board of Developmental
Disabilities, to testify about Plaintiff’s work efforts.

Ms.

Casey said that Plaintiff was deemed eligible for the Board’s
services due to functional limitations in the areas of self-care,
self-direction, learning, and receptive and expressive language.
Plaintiff was in a division of the sheltered workshop program
which “takes job skills and job teaching and job training outside
the four walls of the traditional sheltered workshop
environment.”

Ms. Casey said that Plaintiff had demonstrated an

interest in childcare but that she would continue to receive
services from a rehabilitation specialist even if she obtained a
job in that field.
III.

(Tr. 58-64).
The Medical and Educational Records

The pertinent medical and educational records can be
summarized as follows.

Since the statement of errors focuses on

the ALJ’s credibility determinations, these records serve mainly
as background.
Dr. Kramer, a psychologist, reported on August 9, 2012,
that, based on a form completed by her parents, Plaintiff’s
adaptive living skills were generally below average to extremely
low, but that a form completed by her teacher showed higher
scores (Plaintiff was still below average or worse in four areas
including communication, community use, functional academics, and
self-direction).

The teacher’s scores were given less

consideration because they were slightly out of date.
diagnosed mild mental retardation (Tr. 289-90).
included a diagnosis of anxiety disorder.

Dr. Kramer

A prior report

(Tr. 291).

Dr. Kramer

also administered intelligence testing, measured Plaintiff’s
full-scale IQ at 66, and commented that her “ability to process
simple, routine and visual information quickly without making
errors is a relative strength.”

(Tr. 292).

On September 18, 2012, Patsy Perry, a special education
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coordinator at Plaintiff’s school, reported that Plaintiff would
complete high school with a vocational certificate in childcare.
Ms. Perry concluded that Plaintiff would be able to seek and
maintain employment.

(Tr. 298).

Ms. Perry also completed a form

on which she was asked to rate Plaintiff’s abilities in various
areas; she indicated that Plaintiff had a “serious problem” in
the areas of reading and comprehending written material,
comprehending and doing math problems, and expressing ideas in
written form.

She had an “obvious problem” in five other areas

related to acquiring and using information, including learning
and retaining new material, but she had no serious or obvious
problems in the domain of attending and completing tasks.

(Tr.

190-95).
Craig C. Browne, an habilitation specialist with the Athens
County Board of Developmental Disabilities, wrote a letter on
March 11, 2014, summarizing Plaintiff’s work at a childcare
center.

He said that she had strong motivation and interest but

that she had support needs including assistance in understanding
and acting on new routines, understanding rules and requirements,
reading comprehension and clarification, writing, and any work
routine changes like schedules, needing repeated reminders on
that topic.

(Tr. 279).

Dr. Rivera performed an evaluation of the records for
purposes of determining if Plaintiff’s impairment satisfied
Section 112.02 of the Listing of Impairments.

Dr. Rivera found

that she had only one marked limitation, that being in the area
of acquiring and using information, and that she consequently did
not meet or equal the Listing, which requires at least two marked
limitations.
concurred.

(Tr. 72-74).

Another psychologist, Dr. Hill,

(Tr. 82-84).
IV.

The Vocational Testimony

Nancy Shapiro was called to testify as a vocational expert
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at the administrative hearing.

Her testimony begins at page 64

of the administrative record.
Ms. Shapiro was first asked some questions about someone
with Plaintiff’s background and who could work at any exertional
level but was limited to the performance of simple, routine,
repetitive tasks that did not require a fast pace or had strict
production requirements, and which were performed in an
environment where changes would be only occasional and thoroughly
explained before being implemented.

Ms. Shapiro said that

someone with those restrictions could be employed as a bagger,
stock checker, or hand bander.
Next, Ms. Shapiro was asked whether someone who could not
complete various work-related tasks by herself on a regular and
continual basis could do those jobs.

She said no.

She also

said, however, that simply needing someone to explain more than
once how to do a new task was not work-preclusive.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1129 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
was in the “Adolescents (age 12 to attainment of age 18)” age
group when her application for benefits was filed.

Second, he

found that Plaintiff had not engaged in substantial gainful
activity since the application date.

Going to the next step of

the sequential evaluation process, the ALJ concluded that
Plaintiff had one severe impairment, that being mild intellectual
disability.

The ALJ also found that this impairment did not, at

any time before Plaintiff turned 18, meet or equal the
requirements of any section of the Listing of Impairments (20
C.F.R. Part 404, Subpart P, Appendix 1), and that she did not
have an impairment of Listing severity after turning 18.

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Moving to the next step of the sequential evaluation
process, the ALJ found that since turning eighteen, Plaintiff had
the residual functional capacity to perform simple, routine,
repetitive tasks that did not require a fast pace or had strict
production requirements, and which were performed in an
environment where changes would be only occasional and thoroughly
explained before being implemented.
With these restrictions, the ALJ concluded that Plaintiff
could perform the jobs identified by the vocational expert,
including bagger, stock checker, and hand bander.

The ALJ

further determined that these jobs existed in significant numbers
in the regional and the national economy.

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 these
issues: (1) the ALJ did not properly evaluate the credibility of
Ms. Casey, the third party witness; and (2) the ALJ erred in his
evaluation of the credibility of Plaintiff and her mother.

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
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.

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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.

Ms. Casey’s Testimony

In her first statement of error, Plaintiff faults the ALJ’s
treatment of Ms. Casey’s testimony.

The ALJ found that, based on

the totality of the evidence, including Ms. Perry’s evaluation
and the forms completed during Plaintiff’s work efforts (Exhibit
12E, Tr. 228-78), Plaintiff did not meet or equal any section of
the Listing of Impairments, either child’s or adult’s, and that
she had the residual functional capacity to perform simple and
routine tasks in a low-stress work setting, presumably without
the type of assistance or supervision that would be customary in
a sheltered workshop setting.

To some extent, Ms. Casey’s

testimony can be viewed as inconsistent with this conclusion.
Plaintiff argues that because the ALJ did not explicitly evaluate
this testimony as required by Social Security Ruling 06-03p, the
case should be remanded for purposes of having the ALJ explain
how he considered it.
SSR 06-03p explains to adjudicators how to consider
testimony from persons who are not “acceptable medical sources.”
Rehabilitation counselors are specifically listed as one of the
types of “non-medical sources” to whom the ruling applies.
ruling states that the general criteria for evaluating all

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The

opinion evidence are those set out in 20 C.F.R. §404.1527(d)(now
§404.1527(c))(the “treating physician” rule) and that these
criteria “can” be applied to non-medical sources.

The ruling

goes on to recognize that not every factor will apply in every
case and that “[e]ach case must be adjudicated on its own
particular merits based on a consideration of the probative value
of the opinions and a weighing of all the evidence in that
particular case.”
Plaintiff appears to be arguing that unless an ALJ
specifically recites both that he or she considered all nonmedical opinion evidence under this ruling and explains how these
factors were applied, the decision is legally deficient.
not the law.

That is

There is no “articulation requirement” for this

type of evidence; that is, an ALJ does not have to provide the
same level of detail, including giving “good reasons,” for
discounting opinions from “other sources” as the ALJ does when
discussing opinions of treating physicians.

This Court expressly

discussed this issue in York v. Comm’r of Social Security, 2014
WL 1213240, *5 (S.D. Ohio March 24, 2014), adopted and affirmed
2014 WL 2009018 (S.D. Ohio May 16, 2014), saying this:
Some courts have suggested ... that the failure to
address opinions rendered by sources which are not
“acceptable medical sources” is legal error and may
require remand. See, e.g., Watson v. Comm'r of Social
Security, 2007 WL 4557859, *7 (W.D. Mich. Dec. 20,
2007); see also Patterson v. Astrue, 2010 WL 2232309,
*14 (N.D. Ohio June 2, 2010). Nevertheless, it seems
clear that “SSR 06–03p, in contrast to regulations
pertaining to the handling of treating source opinions,
does not require that an adjudicator articulate ‘good
reasons' for the rejecting of an ‘other source's'
opinion....” Saucier v. Astrue, 2011 WL 1158256, *5 (D.
Me. March 28, 2011), adopted and affirmed 2011 WL
1526952 (D. Me. Apr. 22, 2011). As this Court has
consistently held, “an ALJ is not required to discuss
every piece of evidence in the record.” Miller v.
Astrue, 2010 WL 1644028, *4 (S.D. Ohio March 23, 2010),
adopted and affirmed 2010 WL 1644026 (S.D. Ohio Apr.
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23, 2010). See also Thacker v. Comm'r of Social
Security, 99 Fed. Appx. 661 (6th Cir. May 21, 2004)
(finding no “articulation duty” in SSR 96–7p but only a
duty to consider Social Security employees'
observations of a claimant). Consequently, the question
here is whether the record supports Plaintiff's claim
that the ALJ completely ignored the records relating to
her rehabilitation process.
Here, the ALJ was clearly aware of Ms. Casey’s testimony,
having presided over the hearing where she testified, having
asked her questions about her testimony, and having summarized
her testimony in the administrative decision (Tr. 17-18).

That

summary was generally accurate, although it did not emphasize any
testimony that lent support to the proposition that Plaintiff
would need an unusual amount of assistance and support even in a
routine unskilled work setting.

It is important to note that Ms.

Casey did not express such an opinion unequivocally, nor did her
opinion appear to come from first-hand observation of Plaintiff
in a work setting.

Ms. Casey, reading from the letter from Mr.

Browne, simply said that it was “the thought” that Plaintiff
would not simply be abandoned by her rehabilitation counselor in
the work setting and that Mr. Browne’s services would continue in
order to insure that Plaintiff was doing well.

Ms. Casey said

that in an ideal setting, Plaintiff could work independently, but
that if she experienced a change in job settings or needed to
apply for a different job, Mr. Browne would be there to help her.
Ms. Casey did not say that Plaintiff was not capable, without
such assistance, from performing routine unskilled work in a low
stress setting where, as the ALJ described, any changes in the
routine would be only occasional and thoroughly explained before
being implemented.
The ALJ’s decision was based in large part on the views of
the state agency reviewers and on the statements made by Ms.
Perry, Plaintiff’s teacher, to the effect that Plaintiff did not
have serious deficiencies in attending to and completing tasks
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and could be employed.

It was also based on the notes made from

Plaintiff’s various work efforts.

Plaintiff has not argued that

the ALJ mischaracterized the record concerning these matters or
that they do not constitute substantial support for his residual
functional capacity finding.

The Court finds no reversible error

concerning Ms. Casey’s testimony and therefore recommends
overruling the first statement of error.
B.

Plaintiff’s and Her Mother’s Testimony

Plaintiff’s second claim of error relates to the ALJ’s
evaluation of the credibility of the testimony which she and her
mother gave at the administrative hearing.

She argues that

although the ALJ stated that he was required to evaluate this
testimony as prescribed in, among other sources, Social Security
Ruling 96-7p, he did not.

She contends that his “boilerplate”

statement that “the claimant’s statements concerning the
intensity, persistence, and limiting effects of these symptoms
are not credible to the extent that they are inconsistent with
the residual functional capacity assessment for the reasons
explained below,” Tr. 18, is insufficient and reverses the
analytical process because the ALJ made a residual functional
capacity finding before determining if Plaintiff’s or her
mother’s testimony was believable.

The Commissioner argues, in

turn, that Plaintiff’s reliance on decisions such as Bjornson v.
Astrue, 671 F.3d 640 (7th Cir. 2012) is misplaced, noting that
there are subsequent decisions both from that Court of Appeals
and others which limit the application of Bjornson and permit an
ALJ to use such language if the ALJ subsequently explains the
reasons for his credibility determination.
On the law, the Commissioner has the better argument.
Shortly after Bjornson was decided, this Court concluded that the
issue in such cases is not the use of boilerplate language, but
what happens afterwards.

If an ALJ subsequently provides an

adequate rationale for the credibility determination, the use of
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such language does not require a remand.

See Jones v. Comm’r of

Social Security, 2012 WL 5378850, *7 (S.D. Ohio Oct. 30, 2012),
adopted and affirmed 2013 WL 556208 (S.D. Ohio Feb. 12, 2013),
citing, inter alia,

Williams v. Astrue, 2012 WL 4364147 (S.D.

Ohio Sept. 24, 2012).

As the Court of Appeals later noted in Cox

v. Comm’r of Social Security,

615 Fed.Appx. 254, 260 (6th Cir.

June 11, 2015), “[o]ur chief concern with the popularity of this
template ... is the risk that an ALJ will mistakenly believe it
sufficient to explain a credibility finding, as opposed to merely
introducing or summarizing one.”
The Court finds, contrary to Plaintiff’s argument, that the
ALJ adequately explained his credibility finding.

As noted

above, he discussed how the evidence, including the reports from
Ms. Perry, the job notes, and the opinions of the state agency
reviewers all pointed to the ability to work.

He pointed out

that Plaintiff was, with the assistance provided for her by her
IEP, academically successful.

He found that she had only a mild

degree of intellectual disability.

All of these factors are

supported by the record, and all permit the conclusion that
Plaintiff was not quite as limited as she and her mother
contended.
Under the regulations and case law, an ALJ must consider
evidence about 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, in making
a credibility finding.

See, e.g., 20 C.F.R. §404.1529(c)(3).

The Court may overturn the ALJ’s credibility determination only
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 evaluation of a claimant’s credibility is largely

committed to the discretion of the Commissioner, and the findings
made in that regard are entitled to “great weight and deference.”
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Walters v. Commissioner of Social Security, 127 F.3d 525, 531
(6th Cir. 1997).

Giving that level of deference to the ALJ’s

decision in this case, the Court finds no merit in Plaintiff’s
second claim 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 of Social
Security.
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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