Shultz v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS 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 5/22/2017. Signed by Magistrate Judge Terence P. Kemp on 5/8/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Keith J. Shultz,

:

Plaintiff,

:

v.

:

Case No. 2:16-cv-0655

Commissioner of Social Security,:

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Keith J. Shultz, filed this action seeking review
of a decision of the Commissioner of Social Security denying his
application for supplemental security income.

That application

was filed on September 24, 2012, and alleged that Plaintiff
became disabled on September 1, 2009, which date was later
amended to March 25, 2013.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on January 27, 2015.
denied benefits.

In a decision dated March 9, 2015, the ALJ

That became the Commissioner’s final decision

on May 10, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on September 12, 2016.

Plaintiff filed a

statement of specific errors on October 20, 2016.
Commissioner responded on February 16, 2017.

The

Plaintiff filed a

reply brief on March 2, 2017, and the case is now ready to
decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 42 years old as of the date of the first
administrative hearing and who has his GED, testified as follows.
His testimony appears at pages 40-70 of the administrative
record.

Plaintiff began by discussing his work history.

He had not

worked since March, 2013, but was hired as a cook at a family
restaurant in 2012, a job that lasted for only eight hours.
Before that, he had not worked since 2008 when he spent several
weeks doing inventory at Wal-Mart stores.

He worked in a carpet

warehouse before that as well as in a paper factory, where he
operated a large machine that rolled paper for steel factories.
He had some other machine operator jobs as well and also had
loaded and unloaded trucks.
Next, Plaintiff testified about his various impairments.

He

had problems with his right shoulder, which he attributed to the
surgeon’s having cut a nerve during surgery which took place in
2013.

He could no longer lift anything heavier than a bottle of

water and could not reach overhead or behind himself.
was always cold and his fingers went numb.

His hand

On his left hand, he

was missing the pointer finger, which affected his grip.
pain in his low back as well.

He had

He had undergone two rounds of

physical therapy but it did not help.

On a daily basis,

Plaintiff would lie in a chair with a pillow under his shoulder
to ease the pain.
Plaintiff also testified that he was receiving mental health
counseling.

He was getting medication as well.

He had trouble

making decisions and he had mood swings several times per week.
He had trouble sleeping at night due to pain.
and did not get along well with people.
household chores.

He did not drive

He was not able to do

His days consisted of lying on a couch and

watching movies, although he had difficulty following the
storyline.

He did not believe he could do even a sedentary job

because of the pain in his shoulder, and he could sit for only 45
minutes at a time and stand about the same.
yards before getting short of breath.

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He could walk 100

III.

The Medical Records

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

They can be summarized as follows.

The Court

will focus primarily on records relating to Plaintiff’s condition
at or after the time of his alleged onset of disability, which is
March 25, 2013.
Without going into detail, there are records showing that
well prior to that date, Plaintiff was hospitalized twice for
psychiatric symptoms and was diagnosed with bipolar disorder;
that he was treated for COPD and back pain; and that he had
undergone surgery on his right shoulder but continued to complain
of pain in that joint.

He was also seen by Meredith Finsley, a

psychological assistant, for an assessment for Belmont County Job
and Family Services, who concluded that his general cognitive
ability was in the borderline range and that testing showed a
severe level of depression and anxiety.

His GAF as of the date

of that assessment (August 10, 2011) was rated at 40.

(Tr. 365-

464).
On December 20, 2012, Dr. Padamadan performed a consultative
physical examination.

Plaintiff had been taking Percocet for

five years for pain management and said no other medication
relieved his back pain.

He reported having rotator cuff surgery

at age 15 and having problems with his shoulder.
range of motion of that shoulder was normal.
examination was also normal.

However, the

His back

Dr. Padamadan concluded that

Plaintiff’s upper extremity functions were intact and that he
could sit, stand, walk, and lift and carry up to fifty pounds.
(Tr. 545-47).
On January 10, 2013, Plaintiff was evaluated by David
Bousquet, a psychologist.
Depakote and Seroquel.

At that time, he was taking both

He said he had been receiving mental

health treatment since age 14.

Plaintiff reported low energy and
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motivation as well as being very moody and anxious.

Mr. Bousquet

observed that Plaintiff’s affect was at times depressed and at
times anxious.

He was also easily distracted.

The diagnoses

included bipolar disorder and a prior substance abuse history.
Mr. Bousquet rated Plaintiff’s GAF at 50 and believed Plaintiff
could process information similar to individuals with average
intellectual functioning; would have difficulty maintaining
attention, concentration, persistence, and pace; would have
difficulties conforming to social expectations in a work setting;
and would have difficulty responding to work stress.

(Tr. 558-

65).
Plaintiff underwent surgery on his right shoulder on March
25, 2013.

(Tr. 595).

abnormalities.

Post-surgical studies showed no

However, Plaintiff continued to report pain in

the shoulder joint, and he was referred to a pain clinic.

He had

pain with his physical therapy and was given some SI joint
injections.

He also continued with psychiatric medication

management.

In July, 2014, he reported that his pain medications

were working and that the injections had also caused some
improvement, although his back pain had started to return.

(Tr.

835-36).
The records were also reviewed by state agency physicians
and psychologists.

On December 30, 2012, Dr. Delphia concluded

that Plaintiff could do a range of medium work with some
environmental limitations.

(Tr. 100-02).

The subsequent

reviewer, Dr. Prosperi, said that Plaintiff could do light work
with both environmental and postural restrictions, including only
occasional overhead reaching with the right arm.

(Tr. 116-118).

The first reviewing psychologist, Dr. Rivera, thought that
Plaintiff could do work where job duties were static and changes
could be easily explained, that he could have only limited,
superficial contact with others, and that he could perform
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repetitive 3-4 step tasks where a supervisor or co-worker was
available occasionally to explain or redirect his effort.
102-03).

Dr. Voyten concurred with this evaluation.

(Tr.

(Tr. 118-

20).
IV.

The Vocational Evidence

Dr. Larry Ostrowski was called to testify as a vocational
expert at the administrative hearing.

His testimony begins at

page 70 of the administrative record.
Dr. Ostrowski first testified about Plaintiff’s past work.
He said that Plaintiff’s jobs included industrial truck operator,
slitting machine operator, braiding machine operator, and machine
packager.

Those jobs ranged from unskilled to skilled and were

done at either the light or medium exertional levels.
Dr. Ostrowski was next asked questions about a hypothetical
person with Plaintiff’s age, education, and experience who could
work at the light exertional level.

The person would be unable

to reach overhead or lift with the right arm and could rarely
reach with that arm in any direction.

Additionally, the person

could not crawl or climb ladders, ropes, or scaffolds, and could
only occasionally stoop.

The person also could not tolerate

concentrated exposure to vibration and respiratory irritants and
could not be exposed to hazards such as dangerous moving
machinery or unprotected heights.

Lastly, the person could do

only simple, routine tasks performed in a low stress setting
defined as requiring no assembly line work, no fast-paced
production requirements, no more than occasional changes in the
work routine or work setting, little independent decision-making
or goal setting, and with no contact with the public and only
occasional interaction with supervisors and coworkers.

Dr.

Ostrowski testified that such a person could not do Plaintiff’s
past work.

However, that person could be employed as an office

helper, marker, and mail clerk at the light exertional level, and

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as a surveillance system monitor, document preparer, and table
worker at the sedentary exertional level.
Dr. Ostrowski was also asked how much tolerance there was
for being off task.

He said that an individual can be off task

for up to ten percent of the workday.

Also, an individual could

be late for or miss work up to twice a month before facing
consequences.
After the hearing, Plaintiff submitted a report from a
different vocational expert, Dr. Mona Robinson.

Dr. Robinson

concluded that none of the jobs identified by Dr. Ostrowski, or
any other light jobs, would be available to someone who had the
restrictions posed in the first hypothetical question, because
all such jobs require reaching with the right arm more than ten
percent of the workday.

The same was true of the sedentary jobs

identified, except that the surveillance system monitor job could
not be done without contact with the public, so that requirement,
rather than a reaching requirement, eliminated that job.

(Tr.

850-51).
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1424 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
had not engaged in substantial gainful activity since his alleged
amended onset date.

Going to the next step of the sequential

evaluation process, the ALJ concluded that Plaintiff had severe
physical impairments including degenerative joint disease of the
right shoulder with chronic rotator cuff tendinopathy and
instability, status post Bankart fixation surgery, degenerative
disc disease of the lumbar spine at L5-S1, chronic obstructive
pulmonary disease, mild right carpal tunnel syndrome, and bipolar
disorder.

The ALJ also found that these impairments did not, at

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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.

However, he was not able to reach overhead or

lift with his right arm and could rarely reach with that arm in
any direction.

Also, he could not crawl or climb ladders, ropes,

or scaffolds, could only occasionally stoop, could not tolerate
concentrated exposure to vibration and respiratory irritants, and
could not be exposed to hazards such as dangerous moving
machinery or unprotected heights.

Finally, he could perform only

simple, routine tasks performed in a low stress setting defined
as requiring no assembly line work, no fast-paced production
requirements, no more than occasional changes in the work routine
or work setting, little independent decision-making or goal
setting, and with no contact with the public and only occasional
interaction with supervisors and coworkers.

That being so, the

ALJ concluded that Plaintiff could not perform his past relevant
work.

However, relying on the vocational testimony, the ALJ

found that Plaintiff could do certain light unskilled jobs
including office helper, marker, and mail clerk, and that such
jobs existed in significant numbers in the regional economy and
the national economy.

That finding is inconsistent with a

determination of disability.

Consequently, the ALJ decided that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of errors, Plaintiff raises these issues:
(1) the ALJ did not properly account for all of Plaintiff’s
mental and physical limitations when determining his residual
functional capacity; (2) the ALJ’s evaluation of the opinion
evidence was internally inconsistent and precludes meaningful

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review; and (3) the ALJ improperly relied on the inconsistent and
unreliable testimony of the vocational expert.

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)).
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
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.

Residual Functional Capacity

Plaintiff’s first statement of error takes issue with the
ALJ’s decision both to give great weight to the opinions of the
state agency physicians and psychologists while, at the same
time, both declining to adopt their opinions in full and failing

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to explain why certain limitations found in those opinions were
omitted from the ALJ’s residual functional capacity finding.

As

examples, he notes that both psychologists said that Plaintiff
would need occasional redirection and explanation of tasks from a
coworker or supervisor, and that any changes in the work setting
would have to be easily explained.
either limitation.

The RFC does not mention

The same is true for a physical restriction

on pushing and pulling with the right arm, a limitation found in
Dr. Prosperi’s opinion but, again, not included in the RFC
finding.

Plaintiff also points out that both psychological

reviewers limited him to superficial interactions with others,
but the ALJ changed that limitation to “occasional” and excluded
the public from that limitation, again without explanation.
Without those explanations, he asserts that the Court needs to
remand the case in order to insure both that the ALJ was actually
aware of the details of the reviewers’ opinions and that she had
a substantial basis for disregarding them.
The Commissioner contends, in turn, that the ALJ’s residual
functional capacity assessment, even though it does suffer from
the deficiencies identified by Plaintiff, “adequately
accommodated all Plaintiff’s limitations.”
Opposition, Doc. 17, at 6.

Memorandum in

For example, the Commissioner argues

that restrictions on reaching with the right arm include
restrictions on pushing and pulling; that a limitation to simple,
routine work encompasses the limitation that changes be easily
explainable; and that although occasional contact with others is
not the same as superficial contact, none of the jobs which the
ALJ found Plaintiff capable of performing involved any
significant interactions with supervisors or coworkers.
Plaintiff clearly has the better of this argument.

The

Commissioner is essentially asking the Court to make a vocational
evaluation without any evidence to support it. In a workplace
where the basic tasks are simple and routine, are changes to
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those tasks necessarily “easily explainable”?
know, and the record is silent.

The Court does not

Do jobs like the ones identified

by Dr. Ostrowski involve only superficial interaction with
supervisors and coworkers, or are the occasional interactions
with those groups of people more than superficial?
the record answers this question.

Nothing in

Can someone who is limited in

using his arm to reach still push or pull with it?

If the Court

were to attempt to answer these questions, it would not only be
speculating as to the correct answer, it “‘would propel [our
Court] into the domain which Congress has set aside exclusively
for the administrative agency,’ if [the Court] were to determine
the jobs available to [Plaintiff] based upon h[is] limitations.”
Simpson v. Comm’r of Social Security, 344 Fed.Appx. 181, 192 (6th
Cir. Aug. 27, 2009), quoting SEC v. Chenery Corp., 332 U.S. 194,
196 (1947).
Further, this Court has previously held that an ALJ’s
failure to explain why certain limitations endorsed by a state
agency reviewer whose opinion is purportedly adopted by the ALJ
are not folded into the RFC finding is an error of law justifying
remand.

That is particularly true when the ALJ provides no

explanation for the omission, a failure which makes it difficult,
if not impossible, for the Court to review the ALJ’s reasoning
process and which may well violate Social Security Ruling 96-6p,
which was in effect at the time of the administrative decision.
See Bledsoe v. Comm’r of Social Security, 2011 WL 549861 (S.D.
Ohio Feb. 8, 2011).

Even if the failure is “a simple oversight,”

see id. at *5, it is an error, and not a harmless one.
Consequently, Plaintiff’s first statement of error fully supports
an order remanding the case.
B.

Evaluation of Mr. Bousquet’s Opinion

In his second statement of error, Plaintiff faults the ALJ’s
analysis and evaluation of the opinion of Mr. Bousquet, the
examining psychologist.

The primary thrust of his argument is
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that the ALJ gave great weight to the opinions of the reviewing
psychologists, who, in turn, gave great weight to Mr. Bousquet’s
opinion, but the ALJ gave that latter opinion only some weight.
In addition to this perceived inconsistency, Plaintiff argues
that the ALJ arbitrarily decided to base her evaluation of
Plaintiff’s mental functional capacity on the higher of the two
GAF scores which Mr. Bousquet assigned, when the standard
practice is to credit the lower score.

The Commissioner counters

that the ALJ was well within her discretion to choose to put more
weight on the higher score.
Neither of these issues require a remand.

The ALJ explained

that she gave only some weight to Mr. Bousquet’s report because
it lacked precision in defining exactly the extent of Plaintiff’s
mental limitations.

That comment is true.

While the state

agency reviewers gave it additional weight, they also interpreted
it to mean that Plaintiff’s limitations were the ones they found,
and the ALJ was entitled to rely on that interpretation.

The

distinction here is simply semantic; had the ALJ given great,
rather than only some, weight to Mr. Bousquet’s report, she still
would have been able to rely on the way in which the state agency
reviewers construed his findings.

The same rationale supports a

finding that, to the extent that the GAF score of 50 which Mr.
Bousquet assigned to Plaintiff’s symptoms (the functional GAF was
55) suggested greater limitations than those found by the state
agency psychologists, the ALJ was entitled to make findings in
accordance with their opinions.

Additionally, the ALJ noted, not

unreasonably, that her job was to assess Plaintiff’s maximum
capabilities, so choosing to place some reliance on the more
favorable GAF score was not, on this record, an unreasonable
decision.

Consequently, the issue raised in the second statement

of error should be resolved in the Commissioner’s favor.
C.

The Vocational Testimony

Plaintiff’s final argument is that the testimony of Dr.
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Ostrowski, although it supported the ALJ’s findings, was
unreliable.

Plaintiff bases his assertion on the fact that Dr.

Ostrowski was asked to assume that Plaintiff was ambidextrous
when, in fact, he is right-hand dominant, and that the evidence
supports the latter finding.

Plaintiff contends that Dr.

Ostrowski’s testimony might have been different if he did not
make this assumption, and that the testimony that the jobs
identified could also be performed by a left-hand dominant person
with an assist from the right arm or hand is not helpful because
Plaintiff is unable to use his right arm or hand for that task.
Plaintiff also argues that the ALJ made incorrect assumptions
about his ability to do light work and about how he could use his
left hand notwithstanding the loss of his index finger, and did
not resolve the conflict in the vocational testimony.
On this last point, there was a conflict created when
Plaintiff submitted evidence from his own vocational expert.
However, the ALJ did explain why she credited Dr. Ostrowski’s
testimony, stating that Dr. Robinson simply indicated a
disagreement with Dr. Ostrowski’s conclusions but offered no
support for her competing interpretation of the evidence.
24).

(Tr.

That type of resolution of a conflict in the evidence is

well within the ALJ’s purview.
As to the other parts of this statement of error, the
limitation which the ALJ described on the use of the right arm
was for reaching only.

Plaintiff testified that he could use his

right hand for tasks like buttoning and zippering.

Dr. Ostrowski

also specifically testified that he took the right arm
restrictions into account when determining that Plaintiff could
do the jobs he identified (Tr. 78-79).

He also clearly testified

that all of the jobs could be done with one arm and an assist
from the other.

(Tr. 80).

Since he had been asked to assume the

reaching restrictions imposed by the ALJ, Dr. Ostrowski’s
testimony could reasonably be interpreted as consistent with
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those restrictions.

The ALJ was therefore entitled to rely on

his expertise.
It should be noted, however, that should the case be
remanded on the basis of Plaintiff’s first statement of error,
that will likely require additional vocational evidence.

That

would also provide the ALJ with an opportunity to clarify the
record with respect to the various issues relating to Plaintiff’s
use of his right arm, even in an “assisting” capacity, and also
with respect to how the combination of that restriction and the
absence of one finger on his left hand fit into Plaintiff’s
ability to do any jobs - either the same ones or others - which
might also be consistent with the revised residual functional
capacity finding to be made on remand.

Any issues raised by Dr.

Robinson’s report, including any issue about whether the job of
surveillance system monitor requires interacting with the public,
could be resolved in this way.
VII.

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.
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
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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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