Tisdale v. Commissioner of the Social Security Administration

Filing 18

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be sustained to the extent that this case be remanded to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due by 4/18/2017. Signed by Magistrate Judge Terence P. Kemp on 4/4/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Marlin A. Tisdale,

:

Plaintiff,

:

v.

:

Commissioner of Social Security,:
Defendant.

Case No. 2:16-cv-0346
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Marlin A. Tisdale, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his application for disability insurance benefits.

That

application was filed on December 21, 2011, and alleged that
Plaintiff became disabled on February 9, 2011.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on April 11, 2014.

In a decision dated September 25, 2014, the

ALJ denied benefits.

That became the Commissioner’s final

decision on February 19, 2016, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 27, 2016.

Plaintiff filed a

statement of specific errors on October 14, 2016.
Commissioner responded on December 23, 2016.

The

Plaintiff has not

filed a reply brief, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 53 years old as of the date of the
hearing and who has a high school education, testified as
follows.

His testimony appears at pages 52-64 of the

administrative record.

Plaintiff first testified that he had been working on a
part-time basis until 2011, due to physical limitations, and that
he stopped working altogether in 2011.
half day, he could not work the next.

By then, if he worked a
He said that he

experienced pain in his lower back which radiated into his right
leg.

His treatment had included two epidural steroid injections,

the first of which worked well, and manipulation of his back.

He

was also taking over-the-counter medication and using a TENS
unit.
Asked what made his pain worse, Plaintiff replied that
standing or walking did so, as did sitting, bending, or stooping.
He thought he could stand for thirty minutes at a time and he
could tolerate sitting for an hour and half, although he still
had pain.

He could walk about three blocks, but not without

stopping at least once.

Around the house, Plaintiff helped with

chores, but only for fifteen minutes at a time.

He could also do

a little yard work.
Plaintiff was also asked about depression.

He had stopped

going to a counselor, but said he still did not like being around
people and had occasional crying spells.

He left the house on a

daily basis to walk to the post office and to check on his
mother.

He had discontinued sports activities like softball,

golf, and bowling.
III.

The Medical Records

The pertinent medical records are found beginning at page
258 of the record.

They can be summarized as follows.

Because

Plaintiff’s two claims of error relate only to his psychological
impairment, the Court will limit its review to records related to
that issue.
Plaintiff was seen at Weinstein & Associates, Inc. in 2011
for treatment of a depressive disorder.

A summary from a June

21, 2011 visit, signed by Donald J. Cutcher, M.A., and Keli A.
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Yee, Psy.D., shows that Plaintiff had decreased his activities of
daily living due to physical limitations.

He was experiencing

problems with reduced motivation and energy.

His concentration

was significantly reduced and he was easily distracted.
affect was constricted and his mood was depressed.

His

Plaintiff was

also having some issues with socialization and he reported poor
stress tolerance.

He had made progress in some areas and had

seen an improvement in anger management.

His prognosis was fair.

Other notes from that practice from 2011 are similar.

There is a

note from Dr. Yee dated December 14, 2011, stating that
Plaintiff’s symptoms are “work prohibitive,” and another stating
that “his mood symptoms would negatively impact his ability to
deal with work related stressors.”

(Tr. 259-64, 369, 389).

On

March 14, 2012, Dr. Yee stated that Plaintiff’s “mood symptoms
are currently work prohibitive....”

(Tr. 431).

Dr. Richetta, also a psychologist, wrote a letter to
Plaintiff’s counsel in 2011 concerning a clinical interview which
apparently took place in connection with Plaintiff’s workers’
compensation claim.

Plaintiff reported feeling depressed and

down on a daily basis and had tearful episodes every other day.
He was seeing Dr. Yee every few months and a counselor every few
weeks.

He was taking antidepressant medication.

demeanor confirmed his depression.

Plaintiff’s

He reported problems with

concentration, persistence, and pace, which Dr. Richetta
described as moderate.

Plaintiff said that he was frequently

overwhelmed and withdrawn.

Dr. Richetta concluded that

Plaintiff’s impairment in dealing with work stress was moderate
to marked.

He also concluded that Plaintiff was “permanently and

totally disabled from sustained remunerative activities.”

(Tr.

278-81).
Two state agency psychologists also expressed opinions about
Plaintiff’s mental residual functional capacity.
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Dr. Johnston,

who did not seem to acknowledge the existence of any opinions
from Dr. Yee (the only opinion she discussed was that of Dr.
Richetta), concluded that Plaintiff would perform best in a
setting where changes were infrequent and easily explained, where
social interactions were brief, and where job instructions were
simple to moderately complex, all in a setting which was routine
and relatively static without a fast pace.

(Tr. 80-82).

Dr.

Swain, considering the same evidence, reached the same
conclusion.

(Tr. 96-98).
IV.

The Medical Testimony

Two medical experts testified at the administrative hearing.
The first was Dr. Slodki, whose testimony begins at page 38 of
the record.
Dr. Slodki was asked to determine from the records what
medically determinable impairments existed.

He said that

Plaintiff suffered an acute back injury at work and had chronic
back problems plus radiculopathy.

He also suffered from

dyslipidemia, hypertension, obesity, and chronic pain syndrome,
plus psychological impairments that would be addressed by the
second medical expert.
Dr. Slodki was then asked to rate the severity of these
impairments.
light work.

He testified that Plaintiff should be able to do
He did not comment on the extent to which pain would

produce more limitations, indicating that such a determination
was reserved to the ALJ because it was a matter of credibility.
The second medical expert was Dr. Cremerius, whose testimony
begins at page 45.

He noted that Plaintiff was treated for a

mental impairment only from 2010 to 2012, and that the records
document a depressive disorder, primarily in reaction to physical
impairments.

There was no evidence that the severity of his

depression changed either for the worse or for the better.
Dr. Cremerius further testified that Plaintiff’s depression
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caused a mild limitation in activities of daily living, a
moderate impairment in social interaction, and moderate
limitations in concentration, persistence, and pace.

That would

limit him to the performance of simple, routine tasks in settings
with only incidental contact with the public and occasional
contact with supervisors and coworkers.

He could do such tasks

at whatever pace was required.
V.

The Vocational Testimony

Aimee Mowery was called to testify as a vocational expert at
the administrative hearing.

Her testimony begins at page 64 of

the administrative record.
Ms. Mowery first testified about Plaintiff’s past work.

She

said that he worked as a maintenance laborer, which is a heavy,
unskilled job as typically done, although Plaintiff performed it
at the light exertional level.

He had also been a heavy

equipment operator, which was a skilled, medium occupation,
although Plaintiff did that job at the heavy exertional level.
Ms. Mowery was next asked questions about a hypothetical
person with Plaintiff’s age, education, and experience who could
perform work as described by the medical expert, Dr. Slodki.

She

said those restrictions would preclude that person from doing
Plaintiff’s past relevant work.

However, there would still be

jobs that someone with those limitations could perform, including
small parts assembler, folder, and office helper.

She also

testified to the number of such jobs which existed in the State
economy and in the national economy.

None of those jobs involved

more than incidental contact with the general public or more than
occasional contact with supervisors and co-workers.
Finally, Ms. Mowery was asked questions about someone who
had various limitations, including not being able to lift more
than ten pounds, not being able to stand or walk more than two
hours in a workday, or not being able to twist and being able to

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stoop, bend, crouch, and climb stairs only occasionally.

She

said that all of those limitations were inconsistent with the
ability to perform light work.

She also agreed that someone who

had to take four or five unscheduled breaks during the day in
order to lie down and rest could not be employed competitively.
VI.

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
meets the insured status requirements of the Social Security Act
through the date of decision.

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 physical
impairments including chronic complaints of back pain and
moderate obesity, and a severe affective disorder associated with
his chronic pain syndrome.

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
process, the ALJ found that Plaintiff could perform light work
except that he could not climb ropes, ladders, or scaffolds, and
could not climb stairs and ramps or balance, stoop, kneel,
crouch, or crawl more than frequently.

He also was limited to

carrying out simple, routine tasks so long as they did not
require a fast pace, more than incidental contact with the
public, or more than occasional contact with supervisors or
coworkers.
With these restrictions, the ALJ concluded that Plaintiff
could not perform any of his past relevant work.

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However,

relying on the vocational testimony, the ALJ found that Plaintiff
could do certain light unskilled jobs including assembler of
small parts, folder, and office helper, and that such jobs
existed in significant numbers in the State of Ohio and in
several regions of the national economy.

That finding is

inconsistent with a determination of disability.

Consequently,

the ALJ decided that Plaintiff was not entitled to benefits.
VII.

Plaintiff’s Statement of Specific Errors

In his statement of errors, Plaintiff raises these issues:
(1) the ALJ’s evaluation of Dr. Richetta’s opinion is not based
on substantial evidence and amounts to legal error; and (2) the
ALJ failed to weigh the opinion of a treating source, Dr. Yee.
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
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

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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.

Dr. Yee’s Opinion

The Court will address Plaintiff’s arguments in reverse
order, because it finds the second to be dispositive.

As his

second statement of error, Plaintiff contends that the ALJ did
not weigh the opinion of Dr. Yee, who had been Plaintiff’s
treating psychologist.

The Commissioner argues that Dr. Yee

never expressed the opinion which Plaintiff attributes to him,
namely that Plaintiff had no ability to deal with work stress,
asserting that this statement (Tr. 260) appears in a section of
Dr. Yee’s notes titled “Summary of functional status” and that it
was intended to reflect only what Plaintiff said his symptoms
were rather than an opinion by Dr. Yee that those statements were
accurate.

Since, in the Commissioner’s view, that statement is

not a “medical opinion,” the ALJ was not obligated to treat it as
such or to explain why he gave it no weight.
It is true that the specific statement identified in
Plaintiff’s argument in support of his second statement of error
is the one found at Tr. 260.

That statement is part of a report

dated February 14, 2011, and it could well be read as a selfreport rather than a medical opinion.
the ALJ determined.

(Tr. 20).

It appears that is what

The Court finds no error in that

determination.
However, Plaintiff also refers, in his summary of the
evidence, to the other statements made by Dr. Yee which are
described above.

The ALJ, too, acknowledged at least one of

them, stating that “[w]hen seen on June 7, 2011, the claimant...
felt his mood symptoms were work prohibitive.”

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Id.

In fact,

that statement is not found in the “Summary of symptoms” portion
of the report, but in Dr. Yee’s narrative, strongly indicating
that it is a medical opinion.

The same is true of the other

times when Dr. Yee stated that Plaintiff could not work.

The ALJ

does not appear to have considered any of these statements to be
opinions from a treating source.

The only opinion evidence,

apart from the opinions of the testifying psychologist and the
state agency reviewers, which the ALJ discussed was that from Dr.
Richetta.

(Tr. 24-25).

The ALJ acknowledged that treating source opinions are
entitled to the most evidentiary weight.

However, the ALJ stated

- incorrectly - that no treating source “has offered an opinion
in support of the claimant’s application ....”

(Tr. 27).

By not

recognizing that Dr. Yee expressed an opinion about Plaintiff’s
symptoms which supported a finding that he could not work, the
ALJ did not undertake the analysis required under 20 C.F.R.
§404.4527(c), nor did he articulate “good reasons” for rejecting
Dr. Yee’s opinions.

That is required in this Circuit.

See

Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).

The Commissioner has not advanced a harmless error

analysis, and the Court does not view this error, which is a
total failure to acknowledge and analyze the opinion of a
treating source, as harmless.

Consequently, this argument

supports an order of remand.
B.

Dr. Richetta’s Opinion

Plaintiff also argues that the ALJ did not properly weigh
Dr. Richetta’s opinion.

He notes that the ALJ did not

specifically assign it a weight, but, assuming that the ALJ gave
it little or no weight, he contends that the ALJ’s stated reasons
for doing so are not supported by the evidence.

The Commissioner

responds that because Dr. Richetta was not a treating source, his
opinion could not be given controlling weight, and that the
reasons given by the ALJ for rejecting his conclusions - that
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they were inconsistent both with the results of Dr. Richetta’s
examination and with the treatment notes from Dr. Yee - are
consistent with the record.
This claim might or might not independently support a
remand, but one of the bases for the ALJ’s rejection of Dr.
Richetta’s conclusions - that they are inconsistent with Dr.
Yee’s notes - is at least partially mistaken.

Again, this

appears to have resulted from the ALJ’s failure to recognize that
Dr. Yee expressed the opinion on multiple occasions that
Plaintiff’s symptoms were severe enough to prevent him from
working.

That renders the ALJ’s discussion of Dr. Richetta’s

opinion open to serious question.

On remand, the ALJ will have

the opportunity to revisit this issue and to re-weigh Dr.
Richetta’s opinion in light of a more accurate understanding of
Dr. Yee’s notes.
VIII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff's statement of errors be sustained to the extent that
this case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. § 405(g), sentence four.
IX.

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.
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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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