Barringer v. Commissioner of Social Security

Filing 24

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 by 11/7/2016. Signed by Magistrate Judge Terence P. Kemp on 10/20/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Bobby J. Barringer,

:

Plaintiff,

:

v.

:

Case No. 2:15-cv-3025

:
Commissioner of Social Security,

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

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

His current applications (he

received a partially favorable decision on prior applications)
were filed on February 18, 2010, and alleged that Plaintiff
became disabled on February 12, 2007.
After initial administrative denials of his claim, Plaintiff
was given a video hearing before an Administrative Law Judge on
July 25, 2012.

In a decision dated August 7, 2012, the ALJ

denied benefits.

That decision was reversed by the Appeals

Council and remanded to the ALJ for further proceedings, which
included a second administrative hearing held on February 21,
2014.

In a decision dated March 26, 2014, the ALJ again denied

benefits.

That became the final decision of the Commissioner

when the Appeals Council denied review on October 22, 2015.
After Plaintiff filed this case, the Commissioner filed the
administrative record on February 12, 2016.

Plaintiff filed a

statement of specific errors on April 19, 2016, to which the
Commissioner responded on August 4, 2016.

Plaintiff filed a

reply brief on August 22, 2016, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearings

Plaintiff, who was 50 years old as of the date of the first
administrative hearing and who has a tenth grade education,
testified as follows.

His testimony appears at pages 162-80 and

222-34 of the administrative record.
Plaintiff was asked about his diabetes at the first hearing.
He said he had lost sixty pounds due to diabetes and that he
obtained treatment from free clinics.

His blood sugar had been

high and his doctor wanted to change his insulin but Plaintiff
could not afford it.
jittery.

High blood sugar made him tired and

He was also having problems with leg pain and swelling

and with his vision.

He was using a cane for balance.

Other problems to which Plaintiff testified included two
back surgeries and continued deterioration in his back.
experienced sharp pain which radiated down both legs.

He

Plaintiff

also suffered from arthritis in his right shoulder which resulted
in surgery.

He had trouble lifting from the side.

He had hip

pain as well and had diabetic sores on his left arm.
Plaintiff said he could stand for only five minutes and
could walk only 50 yards even with a cane.
minutes.

He could sit for ten

Most of the day was spent lying down.

Plaintiff said

he had worked in the past at a junkyard and mowing cemeteries,
but did not think he could do any work due to pain and fatigue.
At the second hearing, Plaintiff said that he had difficulty
reading but could make change if given enough time.

He was still

walking with a cane and used a ramp to get into his home.
Plaintiff said again that pain kept him from working and that his
blood sugar was still not under control.
sugar caused dizziness and headaches.

His fluctuating blood

He was able to walk a

block using his cane, but would not be able to do so without it.
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He had fallen several times in the past few months.

Increased

activity caused his legs to swell.
Plaintiff could lift a gallon of milk but nothing heavier.
He began having neck pain six months before the hearing but had
not been examined for it yet because he lost his medical card.
Pain made it difficult for him to sleep and he took short naps
during the day.

He watched television and did crossword puzzles

(later testimony indicated these were word finder puzzles) but
did no housework or yard work.

Plaintiff drove a car

occasionally but mostly his wife did the driving.
Plaintiff’s wife, Joan, also testified at the second
hearing.

She confirmed Plaintiff’s testimony that he could not

sit or stand for very long and that he had trouble reading and
writing.

He could also not do much lifting because of his back.

She also testified to his difficulty sleeping due to pain.
Plaintiff had not done yard work in four years.

He could not

walk for long in a grocery store and would either sit in the car
or pace in the parking lot.
III.

(Tr. 180-87).

The Medical Records

The pertinent medical records are found beginning at page
603 of the record and can be summarized as follows.

Because

Plaintiff does not contend that the content of records relating
to his physical impairments are pertinent to either of his
statements of error and does not summarize those records in his
memorandum (Doc. 14), the Court will not include them in this
summary.
Dr. Sarver, a clinical psychologist and neuropsychologist,
performed a consultative examination on February 11, 2010.

There

do not appear to be any records showing that Plaintiff had been
treated by a mental health professional prior to that time.
Plaintiff told Dr. Sarver he could not work due to problems with
his back.

His affect was constricted and his mood was subdued,
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and he reported low energy levels.
his medical condition.
“functional.”

He was also depressed over

His reading and writing were described as

Dr. Sarver commented that Plaintiff’s job history

was good and his independent living skills were fair.

He thought

that Plaintiff had a GAF of 55 and that he suffered from a pain
disorder, an adjustment disorder, and a personality disorder.
Plaintiff was moderately impaired in his ability to relate to
others, could maintain attention and perform simple, repetitive
tasks, and had a moderate impairment in his ability to manage
work stress.

(Tr. 648-53).

Dr. Biscardi, a state agency reviewer, expressed an opinion
about Plaintiff’s mental residual functional capacity which
appears to be based solely on Dr. Sarver’s report.

Dr. Biscardi

thought that Plaintiff was moderately limited in two of the four
functional areas listed as part of the “B” criteria, those being
maintaining social functioning and maintaining concentration,
persistence, and pace.

Based on that, Plaintiff did not satisfy

the criteria for disability under the Listing of Impairments.

In

making his residual functional capacity finding, he concluded
that Plaintiff had moderate limitations in his ability to
understand, remember, and carry out detailed instructions, to
perform within a schedule and maintain regular attendance, to
complete a normal workday and work week without interruptions
from psychologically-based symptoms and to perform at a
consistent pace without an unreasonable number of rest periods,
to interact as appropriate or get along with the public and with
coworkers, and to adapt to changes in the work setting.
Elaborating on these findings, Dr. Biscardi said that Plaintiff
could “understand, remember, carry out and sustain performance of
1-3 step tasks, complete a normal workday, interact
briefly/superficially with coworkers/supervisors and adapt to
changes/stressors associated with simple routine competitive work
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activities.”

(Tr. 690-704).

Shortly thereafter, Dr. Lewin, also

a psychologist, affirmed Dr. Biscardi’s findings.

(Tr. 746).

Dr. Sarver conducted a second evaluation of Plaintiff on
September 18, 2013.

Again, Plaintiff was not being seen at that

time by a mental health professional.

Dr. Sarver reported much

the same information as on the prior occasion and did not note
any significant changes in Plaintiff’s mental health.

His

diagnoses did not include a personality disorder but did include
both a pain disorder and a depressive disorder.

Dr. Sarver again

rated Plaintiff’s GAF at 55 and again found no difficulty in
understanding, remembering, or carrying out simple job
instructions.

Unlike the earlier report, however, Dr. Sarver

noted some difficulty which Plaintiff manifested in performing
digit and word recall, indicating some difficulty with
attentional pace and persistence.

Dr. Sarver appeared to

translate this into a comment that Plaintiff’s “depression and
pain disorder may episodically attenuate his capacity to perform
multistep tasks.”

Lastly, Dr. Sarver thought Plaintiff would

have some difficulty organizing and working toward goals,
containing his anger, controlling his impulses, and structuring
his life independently of others.

(Tr. 1138-44).

Dr. Sarver

then filled out a form on which he indicated that Plaintiff had
only mild restrictions in his ability to deal with simple
instructions and a moderate restriction in his ability to respond
appropriately to usual work situations and changes in routine.
(Tr. 1145-47).
IV.

The Vocational Testimony

William Tanzey was called to testify as a vocational expert
at the second administrative hearing.

His testimony begins at

page 187 of the administrative record.
Mr. Tanzey was first asked questions about someone with
Plaintiff’s background and who could work at the light exertional

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level, could climb ramps or stairs occasionally but not ladders,
ropes, or scaffolds, could occasionally balance, kneel, stoop,
crouch, and crawl, and who could occasionally reach overhead with
his right arm.

The person needed to avoid concentrated exposure

to extreme cold, vibrations and hazards such as moving machinery
and unprotected heights and could perform simple, routine,
repetitive tasks with occasional changes in the work setting and
occasional interaction with coworkers, supervisors, and the
public.

Mr. Tanzey

said that someone with those restrictions

could do jobs like price marker, grader or sorter, or general
cleaner.

He gave numbers for those jobs in the national and

regional economies.

However, if the person could not read above

the second grade level, given the other restrictions described,
that person could not be gainfully employed.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision which is under
review in this case appears at pages 194-209 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 requirements of the Social Security Act
through June 30, 2014.

Second, he found that Plaintiff had not

engaged in substantial gainful activity since his alleged onset
date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe impairments
including diabetes mellitus, degenerative disc disease,
degenerative joint disease, obesity, depressive disorder, pain
disorder, and personality disorder.

The ALJ also found that

these impairments did not, at any time, meet or equal the
requirements of any section of the Listing of Impairments (20
C.F.R. Part 404, Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation

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process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at the light exertional level but that
he could climb ramps or stairs occasionally but not ladders,
ropes, or scaffolds, could occasionally balance, kneel, stoop,
crouch, and crawl, and could occasionally reach overhead with his
right arm.

Also, Plaintiff needed to avoid concentrated exposure

to extreme cold, vibrations and hazards such as moving machinery
and unprotected heights and could perform simple, routine,
repetitive tasks with occasional changes in the work setting and
occasional interaction with coworkers, supervisors, and the
public.

The ALJ further concluded that Plaintiff had no past

relevant work.

Finally, he determined that Plaintiff could do

the jobs identified by the vocational expert, including price
marker, grader/sorter, and general cleaner, and that significant
numbers of these jobs existed in both the national economy and
the regional economy.

Consequently, the ALJ decided that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises these
issues: (1) the ALJ failed to incorporate Plaintiff’s moderate
limitations in concentration, persistence, and pace into his
residual functional capacity finding; and (2) the ALJ did not
properly evaluate Plaintiff’s credibility,

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)).

It is "'more than a mere

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scintilla.'" Id.
Cir. 1976).

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Limitations on Concentration, Persistence, and Pace

Plaintiff argues, in his first statement of error, that the
ALJ apparently found that Plaintiff suffers from moderate
limitations in concentration, persistence, and pace, since he
gave significant weight to the opinions of both Dr. Sarver and
the state agency reviewers and each found such limitations.

He

then contends that restricting Plaintiff to the performance of
simple, routine, repetitive tasks does not adequately account for
such limitations and that, following the Court of Appeals’
decision in Ealy v. Comm’r of Social Security, 594 F.3d 504 (6th
Cir. 2010), it was error for the ALJ not to have included pacebased restrictions in his residual functional capacity finding
and in the hypothetical question posed to the vocational expert.
Here is what the ALJ said about Plaintiff’s mental capacity.
First, the ALJ reviewed the “B” criteria, finding that Plaintiff
had, among other limitations, moderate difficulties with regard

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to concentration, persistence, and pace, relying on the
statements contained in Dr. Sarver’s second report and on Dr.
Biscardi’s findings.

The ALJ specifically noted, however, that

this portion of his decision did not constitute a residual
functional capacity assessment.

(Tr. 201-02).

When the ALJ did his residual functional capacity finding,
he reviewed both Dr. Biscardi’s opinion and the second of Dr.
Sarver’s reports.

After recounting the various moderate

limitations noted by Dr. Biscardi, the ALJ focused on the
narrative comments indicating that Plaintiff could sustain
performance of 1 to 3 step tasks and complete a normal workday.
(Tr. 206).

He gave that opinion, and its affirmance by Dr.

Lewin, great weight.

He gave Dr. Sarver’s opinion “significant

weight” but did not specifically adopt that opinion’s findings
about any limitations in concentration, persistence, and pace.
Id.

He then found, as outlined above, that Plaintiff’s mental

residual functional capacity did not include any pace-based
restrictions.
Despite Plaintiff’s insistence that the ALJ made a specific
finding that Plaintiff experienced limitations in concentration,
persistence, and pace, the ALJ did not make that finding.

While

he acknowledged findings to that effect in the opinions to which
he gave either great or significant weight, he did not give them
controlling weight or adopt each and every conclusion in those
opinions.

The only time he expressed the conclusion that

Plaintiff had pace-based restrictions was in his discussion of
the “B” criteria, which he explicitly noted was not a residual
functional capacity analysis.

Thus, this case does not present

the same problem with which the Ealy court was confronted, where
the ALJ actually accepted in full an opinion stating that the
claimant could maintain attention only in two-hour segments, but
then failed to incorporate that limitation into the hypothetical
question posed to the vocational expert.
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In Dotson v. Comm'r of Social Security, 2014 WL 6909437, *6
(S.D. Ohio Dec. 8, 2014), adopted and affirmed 2015 WL 1006087
(S.D. Ohio March 6, 2015), the Court said this about arguments
based on Ealy where the ALJ made no specific finding about the
presence of pace-based restrictions:
The primary problem with that argument is that this
case differs significantly from Ealy in term of the
evidence which was before the ALJ and the findings
which were made. In Ealy, the opinion evidence accepted
by the ALJ was a residual functional capacity made by
two sources which addressed twenty separate mental
functional abilities; the sources found the claimant
moderately limited in eight of them, two of which
suggested limitations in maintaining attention and
concentration for extended periods and in performing at
a consistent pace. Here, by contrast, the finding to
which Plaintiff points came not from a residual
functional capacity evaluation but from the state
agency reviewer's assessment of the “B” criteria, which
compare the severity of a claimant's mental limitations
to the Listing of Impairments. That assessment is not,
as the ALJ specifically pointed out (Tr. 43), a
residual functional capacity assessment. See Sutherlin
v. Comm'r of Social Security, 2011 WL 500212, *1 (E.D.
Mich. Feb. 8, 2011)(“the limitations noted in the B
criteria at the second and third steps differ from a
residual functional capacity assessment, in that the
latter requires a detailed assessment of a variety of
functions that fall within each of the four broad
categories listed in the B criteria”). When an ALJ
specifically differentiates between the two findings
and does not incorporate those limitations into his
residual functional capacity determination, Ealy is
inapplicable. See Williams v. Comm'r of Social
Security, 2014 WL 63919, *25 (E.D. Tenn. Jan. 8, 2014)
(“As for Plaintiff's argument with respect to Ealy, the
ALJ did not determine Plaintiff had moderate
limitations in concentration, persistence and pace in
fashioning his RFC, and the proposition that simple,
routine, repetitive tasks does not account for such
limitations does not apply”).
That being so, Plaintiff’s first argument is properly viewed as
raising the issue of whether the ALJ’s decision not to include
pace-based restrictions in his residual functional capacity
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finding is supported by substantial evidence.

See Seevers v.

Comm’r of Social Security, 2015 WL 2131104, *5 (S.D. Ohio May 7,
2015).
Dr. Sarver found pace-based restrictions in his second
opinion, but not in his first.

Additionally, Dr. Sarver said, in

his second report, that these restrictions might only affect
Plaintiff’s ability to attend to multi-step tasks.

Further,

although Dr. Biscardi checked boxes indicating pace-based
restrictions, in the narrative portion of his report he did not
mention them, stating that Plaintiff could complete a workday
which involved the performance of simple 1-3 step tasks.

From

all of this evidence, a reasonable person could have concluded,
as did the ALJ, that if Plaintiff were asked to do only simple,
routine, repetitive tasks, he would not have problems with
concentration, persistence, and pace.

Therefore, this first

statement of error provides no basis for overturing the ALJ’s
decision.
B.

The Credibility Finding

Plaintiff’s second claim of error involves the ALJ’s
credibility determination.

The ALJ rejected testimony that, if

it had been accepted, would have supported a finding of
disability.

Plaintiff argues that the ALJ did not follow the

proper method of analysis which is prescribed in Social Security
Ruling 96-7p and in 20 C.F.R. §§404.1529(c)(3) and 416.929(c)(3),
particularly failing to discuss Plaintiff’s “daily activities;
location, intensity and duration of his symptoms; the type,
dosage, effectiveness and side effects of medication; and
treatment other than medication that had been provided or used.”
Statement of Errors, Doc. 14, at 18.

The Commissioner responds

by arguing that the ALJ did consider these factors along with
others which relate to a claimant’s credibility and made a proper
credibility finding.
A social security ALJ is not permitted to reject allegations
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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).
Again, a review of the ALJ’s decision is needed in order to
resolve this issue.

The ALJ determined that Plaintiff’s

testimony about his symptoms was “not entirely credible ....”
(Tr. 203).

He cited, as bases for that finding, the discrepancy

between Plaintiff’s allegations and the objective medical
evidence, including evidence showing “only minimal
musculoskeletal effects” and examinations which showed “no
problems with his extremities and no neurological deficits.”
(Tr. 203-04).

The ALJ also noted inconsistencies between

Plaintiff’s report that physical therapy was not very effective
and the notes of the therapy sessions.

(Tr. 204).

He also

pointed out that although Plaintiff said that a cane had been
prescribed by his doctors, the records do not bear that out.

Id.

The ALJ considered Plaintiff’s work history as well and the fact
that most medical notes described him as being in only “mild
distress.”

Id.

Overall, therefore, he found Plaintiff’s

credibility to be “poor.”

Id.

Plaintiff is correct that the ALJ’s decision contains no
detailed discussion of other factors which bear on credibility,
particularly Plaintiff’s activities of daily living, except as
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those activities related to whether the “B” criteria for mental
impairments were satisfied (the ALJ found only mild restrictions
in this area based on Plaintiff’s testimony about his daily
activities, see Tr. 201).

However, this omission is insufficient

to justify a remand.
As this Court said in Tomlin v. Comm’r of Social Security,
2015 WL 877903, *7 (S.D. Ohio March 2, 2015), adopted and
affirmed 2015 WL 1412500 (S.D. Ohio March 23, 2015),
The Court begins with what appears to be an assumption
underlying Plaintiff's argument—that an ALJ has not
considered the various factors relating to credibility
which are listed either in §404.1529(c) or SSR 96–7p if
he does not discuss each of them in the administrative
decision. That is not the law. It is true that the
ALJ's decision “must be sufficiently specific to make
clear to the individual and to any subsequent reviewers
the weight the adjudicator gave to the individual's
statements and the reasons for that weight.” See SSR
96–7p; see also Rogers v. Comm'r of Social Security,
486 F.3d 234, 248 (6th Cir.2007). But “[t]here is no
requirement ... that the ALJ expressly discuss each
listed factor,” Coleman v. Astrue, 2010 WL 4094299, *15
(M.D. Tenn. Oct.18, 2010), especially where the ALJ has
“expressly stated that she had considered S.S.R. 96–7p”
and “[t]here is no indication that the ALJ failed to do
so.” White v. Comm'r of Social Security, 572 F.3d 272,
287 (6th Cir.2009).
Here, the ALJ’s decision makes clear that he was fully aware of
the lay testimony and other documentation concerning Plaintiff’s
activities of daily living, and the ALJ cited the pertinent law
when making his credibility finding.

Plaintiff does not suggest

that the inconsistencies noted in the ALJ’s decision are not
supported by the record, nor does he contend that there was any
information about therapy, medication, or side effects that the
ALJ ignored or which would be pertinent to the credibility
determination.
As this Court also said in Tomlin, supra, at *7, “the Court

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must give heed to the proposition that an ALJ's credibility
finding is something that a reviewing court ‘may not disturb
absent compelling reason.’ Smith v. Halter, 307 F.3d 377, 379
(6th Cir. 2001).

Reviewing courts ‘may not try the case de novo,

nor resolve conflicts in evidence, nor decide questions of
credibility.’ Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984).”

Since the error alleged by Plaintiff is not, standing

alone, a sufficient basis to overturn the ALJ’s finding on the
issue of credibility, there is no basis to remand the case for
further proceedings on this question.
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.
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.
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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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