Love v. Commissioner of Social Security
REPORT AND RECOMMENDATION 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. Objections to R&R due by 4/5/2017. Signed by Magistrate Judge Terence P. Kemp on 3/22/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Commissioner of Social Security,
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff, Debra Love, filed this action seeking review of a
decision of the Commissioner of Social Security denying her
application for disability insurance benefits.
was filed on March 27, 2012, and alleged that Plaintiff became
disabled on December 15, 2011.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on February 17, 2015.
ALJ denied benefits.
In a decision dated March 11, 2015, the
That became the Commissioner’s final
decision on April 7, 2016, when the Appeals Council denied
After Plaintiff filed this case, the Commissioner filed the
administrative record on August 8, 2016.
Plaintiff filed a
statement of errors on September 21, 2016, to which the
Commissioner responded on December 8, 2016.
Plaintiff filed a
reply brief on December 21, 2016, and the case is now ready to
Plaintiff’s Testimony at the Administrative Hearing
Plaintiff, who was 55 years old as of the date of the
hearing and who has a high school education, testified as
Her testimony appears at pages 37-47 of the
Plaintiff was first asked why she could no longer work.
replied that she developed what she thought was a migraine
headache and that the vision distortion it caused has never gone
She had seen a number of specialists but the condition was
It affected her ability to function outside of
what she described as her “comfort zone,” that is, areas she was
She could no longer read or use a computer.
Plaintiff also testified that she was able to provide some
care for her mother, who is ill, but it was limited to helping
her out of bed or assisting her in getting her walker.
In response to questions from her attorney, Plaintiff
testified that she was able to see objects but that they appeared
in piecemeal fashion in her field of vision.
since the onset of her symptoms.
She had not driven
She was able to do some simple
She was always accompanied by someone when she went
into an unfamiliar environment.
She was able to listen to audio
Plaintiff also described her fibromyalgia symptoms.
said that she had joint and muscle pain.
standing or dusting increased her pain.
She had received some
injections designed to improve her vision but they had not
The Medical Records
The pertinent medical records are found beginning at page
186 of the administrative record.
The ones which underlie her
three statements of error can be summarized as follows.
First, Dr. Epstein reported on an office visit with
Plaintiff on March 19, 2012.
Her condition was described as
“subjective vision loss” and it had occurred in both eyes.
could not find any objective basis for Plaintiff’s complaint and
said that her examination was entirely normal.
He referred her
to another specialist and had not seen her since then.
That specialist, R. Chorich, also was unable to find an
objective explanation for Plaintiff’s symptoms.
MRI of the brain done at about the same time showed only
Dr. McLean was another physician who performed testing in
2012 relating to Plaintiff’s vision condition.
She reported on
May 14, 2012, that a neurological examination was unremarkable
and that a lumbar puncture showed normal pressure.
said that she could not “find a neurologic etiology” for the
At Dr. Chorich’s request, Plaintiff underwent more testing
on October 29, 2012.
Those tests also produced normal results
for both retinal and macular function.
However, Dr. Racine, the
Director of Electrophysiology testing and Eye Research at
Nationwide Children’s Hospital, concluded that “today’s results
would support her decreased vision” although they did not explain
In November, 2014, Dr. Swedberg performed a consultative
Plaintiff described the episode from
2012 in which her vision became distorted and also said she had
fibromyalgia with associated neck and back pain.
A vision exam
revealed poor peripheral vision and with her central vision she
could read fingers only.
She showed some difficulty bending and
extending her spine but the physical examination was otherwise
Dr. Swedberg’s impressions included diminished visual
acuity of uncertain etiology, a history of fibromyalgia, and
He said, in the narrative portion of his report,
that she could do a “mild amount” of various physical activities
and said she had no difficulty sitting, reaching, grasping, and
As he stated, “her visual acuity is diminished
and this appears to be her primary functional impairment.”
Swedberg also completed a questionnaire about Plaintiff’s ability
to do work-related activities.
He did not impose any relevant
restrictions on Plaintiff’s ability to lift or carry but said
that although she could sit, stand, and walk for a total of eight
hours in a workday, her sitting was limited to four hours (she
could stand for three and walk for one).
Also, he did not think
she could read very small print or read ordinary book or
newspaper print, view a computer screen, or determine differences
in shape and color of small objects.
sort, handle, or use paper files.
Additionally, she could not
State agency physicians also commented on Plaintiff’s
Dr. Perencevich concluded on July 31, 2012,
that Plaintiff had no severe physical impairments.
The next reviewer, Dr. Vasiloff, appeared to conclude that the
evidence he had before him was insufficient, and suggested that
there was a need for additional input.
The Vocational Evidence
Dr. Michael Klein testified as the vocational expert in this
His testimony begins at page 47 of the administrative
First, Dr. Klein was asked to classify Plaintiff’s past
He said that she worked as a receptionist, which
is a sedentary, semi-skilled job.
Next, Dr. Klein was asked questions about a hypothetical
person of Plaintiff’s age, education, and work experience who
could perform at the light exertional level but who could not
climb ladders, ropes, or scaffolds and could not balance.
person could, however, occasionally stoop, crouch, kneel, and
He or she could not be exposed to moving machinery or
unprotected heights or to humidity and wetness, and could only
tolerate occasional exposure to extremes of temperature.
the person could not do occupational driving and could only
occasionally be exposed to vibration.
Dr. Klein said that such a
person could still work as a receptionist.
If, however, the
person could not read anything at all, that occupation would be
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 2029 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 December 31, 2016.
Second, he found that Plaintiff had
not engaged in substantial gainful activity since her amended
alleged onset date, which was February 26, 2012.
Going to the
next step of the sequential evaluation process, the ALJ concluded
that Plaintiff had severe impairments including vision reduction,
fibromyalgia, and obesity.
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 work at the light
exertional level but could not climb ladders, ropes, or scaffolds
and could not balance.
She could occasionally stoop, crouch,
kneel, and crawl, could not be exposed to moving machinery or
unprotected heights or to humidity and wetness, and could only
tolerate occasional exposure to extremes of temperature.
she could not do occupational driving and could only occasionally
be exposed to vibration.
With these restrictions, the ALJ concluded, based on the
vocational testimony, that Plaintiff could still perform her past
relevant work as a receptionist.
Consequently, the ALJ decided
that Plaintiff was not entitled to benefits.
Plaintiff’s Statement of Errors
In her statement of errors, Plaintiff raises these issues:
(1) the ALJ erred in his analysis of whether Plaintiff’s vision
impairment met or equaled the criteria in Section 2.02 of the
Listing of Impairments; (2) the ALJ did not take Plaintiff’s
vision impairment into account in making his residual functional
capacity finding; and (3) the ALJ did not adequately address all
medical opinions in the record.
These issues are considered
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).
Plaintiff has presented three different statements of error,
but they overlap substantially, because each of them takes issue
with the way in which the ALJ dealt with the opinion of the
consultative examiner, Dr. Swedberg.
The Court will therefore
discuss her statements of error collectively.
Plaintiff argues, first, that the ALJ should have concluded
that her visual impairment met or equaled Section 2.02 of the
Listing of Impairments.
That section requires a finding of
disability if a claimant’s “[r]emaining vision in the better eye
after best correction is 20/200 or less.”
Plaintiff asserts that
there are medical findings in the record that Plaintiff’s visual
acuity falls below this threshold, and that the ALJ’s cursory
treatment of this issue - his entire analysis of the Listing of
Impairments consists of the sentence that “[t]he claimant does
not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed
impairments” in the Listing - is totally inadequate and does not
allow for meaningful judicial review.
Second, she contends that
there was enough evidence of deficiencies in her vision - again,
primarily Dr. Swedberg’s report - to require that some visionrelated limitations be incorporated into the residual functional
Lastly, she argues that the ALJ never
adequately explained why he rejected those portions of Dr.
Swedberg’s report which are inconsistent with a finding that
Plaintiff can do a range of light work, as the ALJ found, which
would allow her to return to her receptionist’s job.
Commissioner, for the most part, argues that any errors made by
the ALJ were harmless.
The Court begins its analysis by summarizing exactly what
the ALJ had to say about Dr. Swedberg’s opinions in the
discussion of residual functional capacity.
After the ALJ
reviewed the evidence - most of it from 2012, and with some
omissions (for example, the report from Dr. Racine is not
mentioned at all) - the ALJ said this:
In November, 2014, Dr. Swedberg noted the claimant
ambulated with a normal gait. He stated the claimant
had no joint abnormalities, no evidence of crepitus or
ligamentous laxity over the knee joints, and had grasp
strength and manipulative ability (sic) that were wellpreserved bilaterally. Dr. Swedberg reported that
claimant had no difficulty sitting, reach (sic),
grasping and handling objects. He stated the claimant
was comfortable in both the sitting and supine
positions.... The claimant is able to perform a
limited range of light work.
Interestingly, when summarizing the same report in
that part of the administrative decision dealing with whether
Plaintiff had severe impairments, and, if so, what they were, the
ALJ provided a different summary of that report, focusing on Dr.
Swedberg’s statements about Plaintiff’s poor peripheral vision
with visual field defects and the fact that her visual acuity
without corrective lenses was greater that 20/200 bilaterally.
The ALJ never mentioned the other limitations about
which Dr. Swedberg expressed an opinion and did not indicate the
amount of weight assigned to any portion of that opinion.
As to the Listing issue, this Court has said “that when
there is some evidence which might support a finding of medical
equivalence, even though there is no ‘heightened articulation
burden’ at Step Three, the ALJ has at least a minimal obligation
to explain his analysis.”
See, e.g., Tipton v. Comm’r of Social
Security, 2015 WL 3505513, *5 (S.D. Ohio June 3, 2015), adopted
and affirmed 2015 WL 3952347 (S.D. Ohio, June 29, 2015).
also acknowledged a line of cases holding that if elsewhere in
the decision, the ALJ provides an explanation of why a particular
impairment is not of Listing severity, that may suffice.
Here, there is little question that the ALJ’s specific
discussion of the Listing issue is deficient.
In fact, the ALJ
simply made a finding without any discussion of the evidence and
without any reference to any conceivably applicable section of
Had the ALJ made some other finding about some of
the components of the Listing, such as, in this case, Plaintiff’s
visual acuity, that may have been enough to demonstrate either
compliance with the law or harmless error, but there is no such
analysis elsewhere, only a recitation of the findings of the
various examiners without any effort to resolve any conflicts or
make any determinations.
This error is compounded by the numerous omissions and
inconsistencies apparent in the ALJ’s decision.
To mention just
a few, the ALJ made a specific finding that Plaintiff had a
severe visual impairment.
In reaching that finding, he cited to
the reports from many of the doctors who treated Plaintiff for
vision problems and also Dr. Swedberg’s report.
discussing Plaintiff’s residual functional capacity, the ALJ
rejected the opinion of the state agency reviewer, Dr.
Perencevich, to the contrary, noting again that “evidence
received at the hearing shows the claimant’s visual reduction is
severe” and that Dr. Perencevich did not have the benefit of
hearing Plaintiff’s testimony.
Under the applicable
regulations, a severe impairment is one which “significantly”
limits a claimants ability “to do basic work activities.”
But despite finding that Plaintiff’s visual
reduction met this definition, the ALJ did not include any
restrictions caused by that visual reduction into his residual
functional capacity finding.
He also did not explain why he
apparently found the statements of the various doctors to be
unconvincing even though they almost uniformly concluded that
Plaintiff’s vision problems, though unexplained, nonetheless
His particular failure even to acknowledge, in that
section of the decision, the visual limitations expressed in Dr.
Swedberg’s report - even though he summarized them when finding
that this impairment was severe - leaves the Court guessing about
the reasoning process in which the ALJ engaged.
In short, the
Court fully concurs in Plaintiff’s assertion that the medical
opinion evidence was not adequately dealt with.
When the ALJ’s
discussion of opinion evidence does not provide either the
claimant or the Court with the ability “to follow the
adjudicator's reasoning,” cf. Social Security Ruling 06-03p, a
remand is required.
The Court adds these observations.
It does not appear
anywhere in the administrative decision that the ALJ was aware
that Dr. Swedberg had limited Plaintiff to a combination of
sitting, walking, and standing which could result in a residual
functional capacity finding of somewhere between light and
sedentary work, and which might or might not permit Plaintiff to
work as a receptionist if that job required more than four hours
of sitting in a workday.
The ALJ should consider this evidence
along with other limitations in Dr. Swedberg’s report and, if it
is not accepted, provide an explanation for that decision.
It also appears that the ALJ gave great weight to a May 29,
2013 investigation report, summarized at Tr. 72, and to a summary
of an initial telephone call to Plaintiff which occurred on May
9, 2012 (Tr. 58).
Plaintiff testified under oath about the
former encounter and her statement of errors suggests that the
latter could not have involved any observation of her visual
ability since it occurred by telephone.
It is an unusual case
where this type of evidence is considered to be of almost as much
significance as the medical opinions, and if the ALJ intends to
rely on it in contravention of medical opinions, it might be
helpful to collect additional evidence concerning the credibility
of each version of these incidents.
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.
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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