Kise v. Commissioner of Social Security
ORDER adopting Report and Recommendations re 17 Report and Recommendations.. Signed by Judge James L. Graham on 5/16/2017. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Tamara L. Kise,
Case No. 2:16-cv-396
Plaintiff Tamara L. Kise brings this action under 42 U.S.C.
§405(g) for review of a final decision of the Commissioner of
disability insurance benefits and supplemental security income.
The administrative law judge (“ALJ”) reviewed the evidence in the
record and held two hearings.
In a decision dated November 10,
consisting of degenerative disk disease, hypertension, left knee
pain with possible degenerative changes, obesity, bereavement
disorder, generalized anxiety disorder, panic disorder, and bipolar
disorder. PAGEID 55. After considering the entire record, the ALJ
found that plaintiff has the residual functional capacity (“RFC”)
to perform work with some physical limitations, and that she was
“able to perform simple routine tasks in a low stress environment,
interaction with others and work with no strict production quotas
or time pressures.”
Citing the testimony of the
vocational expert, the ALJ concluded that there were jobs in the
economy which plaintiff could perform, and that she was not
plaintiff’s April 28, 2017, objections (Doc. 18) in response to the
April 14, 2017, report and recommendation of the magistrate judge
(Doc. 17), recommending that the decision of the Commissioner be
Plaintiff’s objections concern the ALJ’s consideration
of evidence relevant to plaintiff’s mental disabilities.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
§ 636(b)(1); see also Fed. R. Civ. P. 72(b).
Upon review, the
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”
Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
Commissioner’s decision if it is based on substantial evidence,
even if substantial evidence would also have supported the opposite
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376
(6th Cir. 2013).
“Substantial evidence exists when ‘a reasonable
mind could accept the evidence as adequate to support a conclusion
[and] . . . presupposes that there is a zone of choice within which
the decision-makers can go either way, without interference by the
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (internal citation omitted).
Even if supported by
substantial evidence, however, “‘a decision of the Commissioner
will not be upheld where the [Commissioner] fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial right.’”
v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
A. ALJ’s Consideration of Dr. Donaldson’s Report
Plaintiff noted below that the ALJ assigned great weight to
the opinion of Dr. Scott L. Donaldson, Ph.D., who conducted a
consultative evaluation of plaintiff on April 26, 2012. See PAGEID
Plaintiff argued that there were significant inconsistencies
between Dr. Donaldson’s report, Exhibit 6F, and the RFC which were
not addressed by the ALJ. Plaintiff contended that because of this
omission, the RFC was not supported by substantial evidence, and
she argued that the case should be remanded to require the ALJ to
explain how he reconciled these inconsistencies.
The magistrate judge correctly observed that the findings in
Dr. Donaldson’s report were not necessarily inconsistent with the
RFC. As the magistrate judge noted, the ALJ’s decision to give Dr.
Donaldson’s report great weight did not constitute a blanket
acceptance of that report.
The ALJ’s decision indicates that she
did not accept every finding made by Dr. Donaldson, most notably,
the Global Assessment of Function (“GAF”) score of 45.
17, p. 10; PAGEID 64-65.
Rather, the ALJ stated that the mental
limitations in the RFC “generally accept and adopt the opinion of
See PAGEID 63 (emphasis supplied).
This court is unaware of any authority which would require the
language of the RFC to exactly mirror the language of the expert
reports upon which the RFC is based.
The fact that the wording of
the RFC does not include the precise language in Dr. Donaldson’s
report does not mean that the two are inconsistent, and
Donaldson’s somewhat tentatively phrased conclusions do not clearly
conflict with the RFC.
For example, Dr. Donaldson stated that
plaintiff’s attention, concentration, persistence and pace in order
to perform simple and multi-step tasks “may be limited by symptoms
of anxiety, bipolar, bereavement and panic disorders” and that her
“chronic pain and fatigue are likely to exacerbate attentional and
PAGEID 512 (emphasis supplied).
also PAGEID 510 (“based on psychological components of chronic pain
and fatigue, her ability to focus and sustain her attention may be
limited”)(emphasis supplied); PAGEID 512 (plaintiff’s “ability to
respond appropriately to work pressures in the work setting may be
limited”)(emphasis supplied). However, as the magistrate correctly
noted, Dr. Donaldson did not opine that plaintiff could not carry
out simple or multi-step tasks, nor did he suggest any workplace
accommodations or restrictions which might reduce or eliminate the
difficulties he identified.
Doc. 17, p. 10.
The RFC restrictions
limiting plaintiff to “simple routine tasks in a low stress
environment” and “work with no strict production quotas or time
pressures” adequately addressed the impairments discussed in Dr.
Dr. Donaldson also noted that plaintiff’s
“ability to respond appropriately to supervisors and co-workers may
PAGEID 512 (Emphasis supplied).
The restriction in
the RFC which limits plaintiff to “only occasional interaction with
others” accommodates this concern.
Plaintiff also argues that the impairments discussed in the
May 21, 2012, and October 26, 2012, opinions of state agency
consultants Mary K. Hall, Ph.D and Deryck Richardson, Ph.D. are
inconsistent with Dr. Donaldson’s report.
See Exs. 1A and 5A. The
ALJ, at PAGEID 63, accorded great weight to the opinions of the
state agency consultants.
The state agency consultants also
reviewed Dr. Donaldson’s report and assigned it great weight.
PAGEID 147, 179. Although they expressed their view of plaintiff’s
mental limitations in slightly different terms than those contained
in Dr. Donaldson’s report, those limitations were not inconsistent.
conditions would likely limit her concentration, persistence and
pace and be increased by work stress, that plaintiff should work in
a static environment in a small group setting or by herself, and
that her interaction with others not include conflict resolution);
PAGEID 181 (plaintiff can perform 1- to 4-step tasks with no multitasking or rapid task completion).
Insofar as plaintiff argues that the ALJ’s decision should
have included a detailed discussion of all of the findings in Dr.
Donaldson’s report, the magistrate judge correctly concluded that
the degree of specificity demanded by plaintiff is not required.
Because Dr. Donaldson was a consultative examiner, the ALJ was not
obligated to give “good reasons” for the weight assigned to his
Ealy, 594 F.3d at 514; Smith v. Comm’r of Soc. Sec., 482
F.3d 873, 876 (6th Cir. 2007).
is not required.
A formulaic recitation of factors
See Friend v. Comm’r of Soc. Sec., 375 F.App’x
543, 551 (6th Cir. 2010).
An ALJ’s failure to cite specific
evidence does not indicate that it was not considered.
Barnhart, 114 F.App’x 727, 733 (6th Cir. 2004).
The ALJ referred
to, and obviously considered Dr. Donaldson’s report at several
points in her decision.
See PAGEID 57-58, 60-61, 63-65.
determination, and no remand is required.
B. Evaluation of the Report of Nurse Peden
The record includes a check-box evaluation form dated July 31,
2013, concerning plaintiff’s mental residual functional capacity,
which was completed by Ann Peden, R.N., C.N.S., a nurse who also
treated plaintiff at the Lower Lights Christian Health Center
On this form, Nurse Peden indicated that the
majority of plaintiff’s mental impairments were in the extreme
Plaintiff argued that in discussing this evaluation, the
ALJ did not comply with SSR 06-3p, 2006 WL 2329939 at *1 (S.S.A.
Aug. 9, 2006), which addresses an ALJ’s consideration of “other
As a nurse practitioner, Nurse Peden’s evaluation falls within
the category of “other source” evidence.
Id. at *2.
The ALJ was
not required to provide good reasons for the weight given to her
opinion under §404.1527(d)(2).
Mulkey v. Comm’r of Soc. Sec., No.
1:10-cv-466, 2011 WL 4528485 at *6 (W.D.Mich. June 14, 2011),
adopted 2011 WL 4528479 (W.D.Mich. Sept. 29, 2011).
ALJ “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.”
06-3p, 2006 WL 2329939 at *6.
A formulaic recitation of the
See Starr v. Comm’r of Soc. Sec., NO. 2:12-cv-290, 2013
WL 653280 at *6 (S.D.Ohio Feb. 21, 2013).
The Commissioner conceded that the ALJ mistakenly noted that
the medical records failed to document any prior treatment of
plaintiff by Nurse Peden because plaintiff attended counseling
sessions with Nurse Peden early as November, 2012.
magistrate judge concluded that, despite this error, the ALJ’s
discussion of Nurse Peden’s opinion was sufficient to comply with
The magistrate judge observed that the ALJ correctly
found that the treatment notes which preceded Nurse Peden’s opinion
did not support the extreme limitations she found, and that the
ALJ’s decision to reject those extreme limitations was supported by
Doc. 17, p. 12-14.
This court agrees.
The ALJ noted that she considered the form provided by Nurse
Peden, but that the treatment records from Lower Lights did not
support such extreme limitations.
The ALJ observed
that the first report from plaintiff about hearing voices or having
hallucinations did not occur until June, 2013, just a month before
Nurse Peden’s evaluation.
PAGEID 61, 64.
The ALJ stated that the
form appeared to be based on plaintiff’s subjective complaints,
which the ALJ found to be not entirely credible.
See Tyra v. Sec’y
of Health & Human Servs., 896 F.2d 1024, 1030 (6th Cir. 1990)(ALJ
may dismiss a claimant’s allegations of disabling symptomatology as
implausible if the subjective allegations, the ALJ’s personal
observations, and the objective medical evidence contradict).
opinion was a check-box form to be completed for plaintiff’s
See Hernandez v. Comm’r of Soc. Sec., No. 15-
erroneous consideration of check-box analysis was harmless error
where the form was unaccompanied by any explanation and was “weak
evidence at best”).
The ALJ also stated that the notes of
plaintiff’s mental status examination on the day the form was
completed did not support the limitations on the form; that the
treatment records prior to that day and the day after the form was
plaintiff had undergone mental health treatment from 2008-2009 and
plaintiff did not resume treatment until June, 2012, following the
deaths of family members.
PAGEID 60-61, 64.
The ALJ did not
ignore Nurse Peden’s opinion, but rather gave it “some weight for
records in other parts of her decision.
The ALJ noted that
plaintiff had mild restrictions in activities of daily living.
the time of the hearing, plaintiff had been homeless for a year and
was living in her van or staying with friends, yet was able to
drive, take care of matters such as laundry and personal hygiene,
and spend time at the library reading.
functioning, but was able to get along with store clerks and others
in the workplace, and was socially appropriate during emergency
room visits for her panic attacks.
The ALJ found
persistence, or pace, but was alert and oriented, with intact
memory, was able to follow simple commands and instructions, and
had no episodes of decompensation.
reported auditory and visual hallucinations, she was able to
adequately react to them, and no more extreme measures of symptom
control were discussed or recommended, nor did plaintiff require
any crisis intervention. PAGEID 59-61. At Lower Lights, plaintiff
was placed on a plan for medication management, and she reported
receiving a benefit from psychotropic medications.
The magistrate judge correctly found that the ALJ’s conclusion
limitations posited by Nurse Peden was supported by evidence in the
The magistrate judge observed that the treatment notes
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
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 manner. None
of that was apparent when she was evaluated by Dr.
Donaldson. She consistently, as the ALJ noted, presented
with an appropriate mood and affect.
positively to medication and found ways to cope with her
issues with hearing voices and avoiding arguments with
She was medication-compliant.
showed that she was not exhibiting psychotic symptoms.
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.
Doc. 17, pp. 13-14.
The magistrate judge also noted that the two
state agency consultants and Dr. Donaldson did not find these
extreme limitations. Doc. 17, p. 14. The magistrate judge did not
engage in an impermissible post-hoc analysis in addressing this
claim of error.
It is the function of the magistrate judge and
Commissioner’s decision is supported by substantial evidence.
Ealy, 594 F.3d at 512.
The magistrate judge properly examined the
record evidence as a whole in deciding whether the weight assigned
by the ALJ to Nurse Peden’s opinion was supported by substantial
objection is not well taken.
Having reviewed the record de novo, the court determines that
there is substantial evidence supporting the ALJ’s determination
that plaintiff is not disabled, as defined in the Social Security
The court hereby adopts and affirms the magistrate judge’s
report and recommendation (Doc. 17).
18) are denied.
Plaintiff’s objections (Doc.
The Commissioner’s decision is affirmed, and this
action is dismissed.
Date: May 16, 2017
The clerk shall enter final judgment.
s/James L. Graham
James L. Graham
United States District Judge
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