Kise v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 3 Complaint filed by Tamara L. Kise in that it is RECOMMENDED Plaintiff's Statement of Errors be overruled and that judgment be entered in favor of the Commissioner. Objections to R&R due by 4/28/2017. Signed by Magistrate Judge Terence P. Kemp on 4/14/17. (sem)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Tamara L. Kise,
Case No. 2:16-cv-0396
Commissioner of Social Security,:
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff, Tamara L. Kise, filed this action seeking review
of a decision of the Commissioner of Social Security denying her
applications for disability insurance benefits and supplemental
Those applications were filed on March 6, 2012,
and alleged that Plaintiff became disabled on February 5, 2010.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on October 17, 2013, and a supplemental hearing on March 20,
In a decision dated November 10, 2014, the ALJ denied
That became the Commissioner’s final decision on March
10, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on July 11, 2016.
Plaintiff filed a
statement of specific errors on September 23, 2016.
Commissioner responded on December 6, 2016.
Plaintiff filed a
reply brief and amended reply brief on December 20, 2016, and the
case is now ready to decide.
Plaintiff’s Testimony at the Administrative Hearings
Plaintiff, who was 42 years old as of the date of the first
administrative hearing and who has a high school education with
some college work, testified as follows.
Her testimony appears
at pages 56-74 of the administrative record.
She testified only
at the first administrative hearing.
When asked about her living situation, Plaintiff testified
that she had been homeless for the past year.
lived with her parents.
Before that, she
She said that she had pain in her right
hip and that she could stand or walk for about half an hour and
sit for the same amount of time.
She could not do either
activity for more than two hours in an eight-hour workday and
could lift only ten pounds, and even that was painful.
Plaintiff’s last job was as a file clerk with Ohio Insurance
She spent the majority of her day standing and
walking, and had to lift up to fifteen pounds.
She had also
worked as a customer service representative for various
That was a seated position which did not allow breaks
Next, Plaintiff testified that she had been seeing a mental
health counselor since 2007.
However, there was a treatment gap
from 2009 to 2012, when she resumed counseling due to deaths in
Plaintiff also said that she spent most days in the
She did need to lie down during the day due to pain.
Additionally, she had been hearing voices since 2010.
The Medical Records
The pertinent medical records are found beginning at page
319 of the record.
The more significant ones - those created
close to or after Plaintiff’s alleged onset date - can be
summarized as follows. It is helpful to note that prior to that
date (February 5, 2010), Plaintiff had been diagnosed with and
treated for (among other conditions) bipolar disorder,
posttraumatic stress disorder, panic, anxiety, sleep issues,
hypertension, and knee pain.
Plaintiff sought treatment at the Mt. Carmel Hospital
emergency room on May 27, 2011, complaining of increasing pain in
She related it to a fall which had happened several
She also had a broken toe.
She was treated,
given medication, and directed to follow up with a physician.
On April 23, 2012, Dr. Whitehead performed a consultative
Plaintiff’s chief complaints at that time
were low back pain and left knee pain.
She reported limits on
her ability to lift, sit, and walk, and said that her most
comfortable position was lying down.
Plaintiff walked with a
slightly antalgic gait and had restricted range of motion in her
Straight leg raising was negative.
diagnosed left knee pain and chronic low back pain without active
He said that Plaintiff could do sedentary work as
long as she could sit and stand as needed for comfort.
Plaintiff underwent another orthopedic evaluation on
December 2, 2013.
The examiner, Dr. Brown, noted that Plaintiff
said that her problems were primarily psychological in nature but
she did have back pain as well.
and right hip pain.
She also reported left knee pain
Her gait was normal.
tenderness in the cervical spine, the left knee, and over the
entire thoracolumbar spine, most pronounced at L4-5.
assessed with left knee pain and chronic back and neck pain.
Brown thought Plaintiff could perform moderate duty work and was
only mildly impaired by the findings noted at the examination.
The records were reviewed by two state agency physicians.
Dr. Das thought that Plaintiff could perform light work with some
Dr. Bertani concurred with
Dr. Donaldson, a psychologist, performed a consultative
psychological evaluation on April 26, 2012.
Plaintiff told Dr.
Donaldson that she was not mentally able to function due to
anxiety and panic attacks.
She had previously been treated for
Plaintiff’s affect was flat and her mood was
depressed with anxious features.
She reported mood swings and
manic behavior as well as continual anxiety.
diagnosed bereavement, generalized anxiety disorder, panic
disorder, and bipolar disorder.
He rated Plaintiff’s GAF at 45
and thought her prognosis was guarded.
He concluded that she had
no limits on her ability to understand, remember, and carry out
instructions; that she was limited in her ability to maintain
concentration, persistence, and pace; that she was also limited
in her ability to relate to others in the workplace; and that her
symptoms might precipitate workplace disruptions.
Subsequently, Ann Peden, a nurse who participated in Plaintiff’s
psychological care, completed a form indicating that Plaintiff
had many extreme psychological limitations.
There are a number of treatment notes after that date from
Lower Lights Christian Health Center showing that Plaintiff was
being treated for psychotic symptoms including hearing voices and
Her diagnoses included a severe bipolar
disorder and a psychotic affective disorder, and her GAF was
generally rated in the 43-48 range.
She was taking a number of
medications including Abilify and Seroquel.
Both Ms. Peden and
others who provided counseling or treatment to Plaintiff
completed forms in 2015 indicating, as did the prior form, that
Plaintiff had a plethora of extreme mental limitations.
One of the treaters, Rosanne Hickman, also wrote a
letter dated December 3, 2014, which was signed by a Dr. Stamps
as well, stating that Plaintiff was severely mentally ill and
needed disability benefits in order to survive.
State agency psychologists also expressed opinions about
Plaintiff’s mental residual functional capacity.
On May 21,
2012, Dr. Hill concluded that Plaintiff could work in a static
work environment where changes were explained and gradually
introduced, where interactions with others were limited, with no
conflict resolution or persuading others, and where she would be
limited to the performance of one- to four-step tasks with no
multi-tasking and no requirement for rapid task completion.
On October 26, 2012, Dr. Richardson reached the same
Neither had the benefit of the
subsequent treatment notes and opinions from Lower Lights.
The Vocational Testimony
Vocational experts testified at both administrative
The Court will summarize only the testimony of Dr.
Richard Oestreich, who testified at the second hearing, and whose
testimony begins at page 36 of the administrative record.
Dr. Oestreich was first asked about Plaintiff’s past work.
He said that she had held three different types of jobs, those
being telephone information clerk, file clerk, and administrative
All of those jobs were sedentary; the first two are
semi-skilled positions, and the third is skilled.
acquired job skills which would transfer to other positions like
Dr. Oestreich was next asked questions about a hypothetical
person with Plaintiff’s age, education, and experience who could
do a limited range of light work.
The person could climb stairs
occasionally as well as kneel, crouch, and crawl, could
frequently balance and stoop, and could not climb ladders, ropes,
He said that someone with those restrictions could
do all of Plaintiff’s past relevant work and work based on
transferable skills, as well as about 50% of the unskilled light
Were the person limited to sedentary work, he or
she could still do all of Plaintiff’s past jobs.
Next, a hypothetical question was posed which included some
It described a person who was
limited to the performance of simple routine tasks, who could
interact with others on an occasional basis, and who could do
only low-stress work without strict production quotas or time
Dr. Oestreich testified that those limitations would
preclude the performance of Plaintiff’s past work, but the person
could do 50% of the unskilled sedentary jobs available, including
addresser and document preparer.
The next hypothetical asked Dr. Oestreich to assume that
someone was physically limited as described in the form completed
by Dr. Brown, the consultative examiner, and who still had the
same psychological limitations previously indicated.
that the physical limitations still allowed a fair percentage of
light jobs to be performed, and he identified occupations like
packager, sorter, and inspector.
Dr. Oestreich was then questioned by Plaintiff’s counsel.
He said, first, that someone who needed to sit or stand as needed
for comfort could still do the sedentary jobs he had identified.
Next, if the person were off task for more than 10% of the day,
that would be work-preclusive.
Also, someone with extreme
limitations on numerous mental activities needed for work could
not be employed.
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 1125 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, 2015.
Second, she found that Plaintiff had not
engaged in substantial gainful activity since her alleged onset
Going to the next step of the sequential evaluation
process, the ALJ concluded that Plaintiff had severe physical
impairments including degenerative disc disease at level L4-5 and
L5-S1; hypertension; left knee pain with remote anterior cruciate
ligament tear and possible degenerative changes; obesity;
bereavement disorder; generalized anxiety disorder; panic
disorder; and bipolar 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
process, the ALJ found that Plaintiff could lift up to 50 pounds
occasionally and 20 pounds frequently, could sit for two hours at
a time up to eight hours in a workday, could walk for an hour at
a time and up to three hours in a workday, and could stand for
one hour at a time for up to two hours in a workday.
could occasionally bend, stoop, crawl, and squat, could use her
arms frequently for pushing and pulling and could use her legs
and feet frequently for the operation of foot controls.
to avoid work at unprotected heights and could work around moving
machinery only occasionally.
Lastly, she could perform simple,
routine tasks in a low stress environment, defined as requiring
only occasional interaction with others and work with no strict
production quotas or time pressures.
With these restrictions, the ALJ concluded that Plaintiff
could not perform any of her past relevant work.
relying on the vocational testimony, the ALJ found that Plaintiff
could do 40% of the light unskilled jobs including packager,
sorter, and inspector.
The ALJ also found that such jobs existed
in significant numbers in local economy and the State economy.
That finding is inconsistent with a determination of disability.
Consequently, the ALJ decided that Plaintiff was not entitled to
Plaintiff’s Statement of Specific Errors
In her statement of errors, Plaintiff raises these issues:
(1) the ALJ’s mental residual functional capacity finding is not
supported by substantial evidence; and (2) the ALJ failed to
follow Social Security Ruling 06-03p when evaluating the medical
A third issue, asking for a sentence six
remand, has been withdrawn.
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)).
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.
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).
Mental Residual Functional Capacity
Plaintiff’s first statement of error focuses on the
consultative evaluation done by Dr. Donaldson.
She notes that
Dr. Donaldson expressed the view that she would have difficulty
with many workplace requirements, and also that the ALJ purported
to give great weight to Dr. Donaldson’s evaluation.
argues that there are significant inconsistencies between Dr.
Donaldson’s evaluation and the ALJ’s mental residual functional
capacity finding and that, as a result, the ALJ’s finding is not
supported by substantial evidence.
Plaintiff also faults the ALJ
for disregarding Dr. Donaldson’s statement that pain would
exacerbate her mental difficulties, that she would need
assistance managing benefits, and that her GAF score was 45.
of these, she claims, demonstrate that the ALJ improperly
rejected, rather than accepted, Dr. Donaldson’s opinions.
Commissioner responds that the ALJ’s residual functional capacity
finding was sufficiently consistent with Dr. Donaldson’s
opinions, as well as those of the state agency reviewers, to
undercut Plaintiff’s argument, and that the ALJ did not err by
failing to discuss certain statements in his opinion or by
choosing not to place significant reliance on the GAF score.
her reply, Plaintiff makes her argument more specifically,
asserting that the ALJ simply failed to account for certain
limitations contained in Dr. Donaldson’s report, including a
limitation to the performance of simple tasks and the fact that
chronic pain and fatigue would affect Plaintiff’s ability to
concentrate in the workplace.
Here is what the ALJ said about Dr. Donaldson’ report.
Before discussing it, the ALJ gave “great weight” to the two
state agency psychologists’ reports because those psychologists
had “knowledge of the Social Security Administration’s program
and requirements” and because their opinions were “consistent
with the medical evidence of record.”
She then noted
that the mental limitations incorporated into the residual
functional capacity finding “generally accept and adopt the
opinion of Dr. Donaldson,” which she also gave great weight due
to his familiarity with the Social Security program and the fact
that his opinion was based on his own observations, psychometric
testing, and his interview with Plaintiff.
The ALJ did not, however, accept every finding made by Dr.
For example, she rejected his GAF score of 45 as “not
consistent with the narrative of his evaluation.”
also rejected the usefulness of those scores more generally, in
part because they represent a snapshot of a claimant’s
functioning rather than a longitudinal evaluation and because the
score is subjective and based on the claimant’s own description
As Plaintiff has pointed out, the
ALJ did not otherwise discuss the specifics of Dr. Donaldson’s
The most significant area where, according to Plaintiff, the
ALJ’s residual functional capacity finding and Dr. Donaldson’s
report diverge relates to Plaintiff’s ability to perform simple
The ALJ found Plaintiff could perform them; Dr. Donaldson
said that her ability to do so “may be limited by symptoms of
anxiety, bipolar, bereavement and panic disorders” and might also
be affected by her pain and fatigue. (Tr. 464).
He did not,
however, say that she could not carry out simple (or even multistep) tasks, nor did he suggest any workplace accommodations
which might reduce or eliminate the difficulties he identified.
According to Plaintiff, the ALJ’s failure explicitly to
acknowledge that Dr. Donaldson had identified these limitations,
when coupled with the ALJ’s decision to give great weight to Dr.
Donaldson’s report, requires the Court to remand the case so that
the ALJ can more fully explain her reasoning.
In the Court’s view, Plaintiff is demanding a level of
specificity from the ALJ that the law does not require.
no particular articulation requirement which applies to opinions
from non-treating sources, even when all or some portion of those
opinions is rejected.
See, e.g,, Dykes ex rel. Brymer v.
Barnhart, 112 Fed. Appx. 463, 468 (6th Cir. Oct. 12, 2004)(““the
ALJ's failure...to explain why he disregarded part of the opinion
of a consultative examiner does not warrant reversal”).
there is some minor discrepancy between, for example, the opinion
of a consultative examiner and that of a state agency physician,
the ALJ is entitled to resolve that discrepancy based on the
substantial evidence of record, and need not give a detailed
explanation of that resolution.
See Pierce v. Comm'r of Social
Security, 2015 WL 6561950 (S.D. Ohio Oct. 30, 2015), adopted and
affirmed 2015 WL 7888791 (S.D. Ohio Dec. 4, 2015).
That is what happened here.
It could be argued, as the
Commissioner has asserted, that there is actually no discrepancy
at all among the three opinions to which the ALJ assigned great
weight; Dr. Donaldson said that Plaintiff would have some
unspecified problems dealing with simple tasks, and the state
agency reviewers concluded that she could perform those tasks in
a static work environment with no multi-tasking and no
requirement for rapid task completion.
Those findings are not
Even if they are, the ALJ was entitled
to accept the state agency reviewers’ interpretation of Dr.
Donaldson’ report, which they had before them, to the extent that
the two differ.
Plaintiff has presented no argument that the ALJ
was not permitted to rely on those reports to the extent that
they differ from Dr. Donaldson’s assessment.
Court finds nothing in the ALJ’s evaluation of the expert reports
which would necessitate a remand.
Plaintiff’s other argument is that the ALJ’s evaluation of
the report of Ms. Peden, who is not, under the applicable
regulation, an “acceptable medical source.”
The ALJ gave weight
to this report only to the extent that it supported the existence
of “some mental limitations,” Tr. 22, but rejected the extreme
limitations indicated in the report.
Plaintiff argues that the
ALJ failed explicitly to recognize (even though she cited to SSR
06-3p, see Tr. 17) that it was possible to give the greatest
weight to Ms. Peden’s opinion, something she characterizes as a
See Doc. 11, at 12.
She then asserts
that the ALJ failed to take the longitudinal treating
relationship into account when weighing Ms. Peden’s evaluation,
and, in fact, erroneously stated that Ms. Peden had treated
Plaintiff for a short period of time when that was not the case.
The Commissioner concedes this latter point, acknowledging that
the treatment relationship began as early as November, 2012, see
Doc. 14, at 13, but contends that the ALJ’s “analysis of the
opinion was otherwise entirely reasonable.”
Id. at 15.
particular, the Commissioner argues that the ALJ properly made
her decision to discount Ms. Peden’s opinions because none of the
treatment notes supported such extreme limitations and because
the basis of those limitations appeared to be Plaintiff’s own
As the Commissioner notes, the ALJ’s decision contains a
significant amount of analysis about the mental health treatment
The earliest set of notes indicates that Plaintiff was
discharged from further treatment after her goals were met.
There was then a gap of almost three years without mental health
When she resumed treatment, another year passed
before she began reporting psychotic symptoms, and there was
never any crisis intervention done.
With this background, the
ALJ then began her analysis of Ms. Peden’s opinions.
Despite Plaintiff’s argument to the contrary, the ALJ’s
opinion does not suffer from any procedural deficiencies in terms
of the ALJ’s application of SSR 06-03p.
As this Court has
SSR 06–3p states that “the adjudicator generally should
explain the weight given to opinions from these ‘other
sources,’ or otherwise ensure that the discussion of
the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the
adjudicator's reasoning....” This does not create an
independent regulatory duty to articulate the ALJ's
reasoning in the same way required for an opinion
rendered by a treating source. See, e.g., Robinson v.
Comm'r of Social Security, 2012 WL 194966, *12 (N.D.
Ohio Jan. 20, 2012) (“there is no controlling precedent
requiring an ALJ to explicitly address written
statements such as” a function report from a case
manager). Rather, all that is needed is a sufficient
discussion of all of the evidence of record to
demonstrate that the ALJ considered the key factors of
“ ‘supportability and consistency’ ” in deciding how
much to credit these types of reports. See Acton v.
Comm'r of Social Security, 2013 WL 3761126, *5 (S.D.
Ohio July 16, 2013), quoting Kerlin v. Astrue, 2010 WL
3937423, *8 (S.D. Ohio March 25, 2010), adopted and
affirmed 2010 WL 3895175 (S.D. Ohio Sept. 29, 2010).
Swartz v. Comm'r of Social Security, 2014 WL 868127, *8 (S.D.
Ohio March 5, 2014), adopted and affirmed 2014 WL 1343094 (S.D.
Ohio Apr. 3, 2014).
The ALJ did enough to satisfy these
procedural requirements, so the issue comes down to whether the
ALJ’s reasoning process is supported by the evidence of record.
For the following reasons, the Court finds that it is.
ALJ first commented that the Lower Lights notes which preceded
the first opinion rendered by Ms. Peden “do not support such
That is a fair reading of those
They do not themselves contain any indication of symptoms
so extreme that, for example, Plaintiff could never deal with
others in the work setting, could never maintain socially
acceptable behavior, could never process information, could never
maintain attention and concentration for even brief periods of
time, could never be aware of hazards and take necessary
precautions, and could never behave in an emotionally stable
None of that was apparent when she was evaluated by Dr.
She consistently, as the ALJ noted, presented with an
appropriate mood and affect.
She responded positively to
medication and found ways to cope with her issues with hearing
voices and avoiding arguments with people.
She was medication-
Various notes showed that she was not exhibiting
A reasonable person could infer from this
body of evidence that Ms. Peden’s opinions were disproportionate
to the behaviors reflected in the treatment notes.
An ALJ always has a “zone of choice” in reaching conclusions
from the record, so long as those conclusions are reasonable,
even if the Court might, on de novo review, see the issue
See, e.g., Buxton v. Halter, 246 F.3d 762, 773 (6th
Cir. 2001)(“there is a ‘zone of choice’ within which the
Commissioner can act, without the fear of court interference”).
Here, the ALJ operated within that zone.
The factors of
consistency and supportability are appropriate factors to be
considered under SSR 06-3p, and the ALJ both had, and expressed,
valid reasons for concluding that those factors did not justify
giving more than some weight to Ms. Peden’s opinions.
It is also
helpful to note that the state agency reviewers, who had the
opportunity to do some longitudinal review of the record, reached
very different conclusions, as did Dr. Donaldson.
circumstances, the Court finds no error in the ALJ’s decision to
reject the extreme limitations posited by Ms. Peden and to give
more weight to the opinions of the three psychologists who
reached a different conclusion as to Plaintiff’s mental
That being so, there is no basis for remanding the
case for additional proceedings.
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 Commissioner.
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
of the report or specified proposed findings or
recommendations to which objection is made.
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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