Dudley v. Commissioner of Social Security Administration
REPORT AND RECOMMENDATION re 3 Complaint filed by Barbara J. Dudley in that it is recommended that the Plaintiffs statement of errors be sustained to the extent that the case be remanded to the Commissioner for further proceedingspursuant to 42 U.S.C. § 405(g), sentence four. Objections to R&R due by 6/15/2017. Signed by Magistrate Judge Terence P. Kemp on 6/1/17. (sem)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Barbara J. Dudley,
Case No. 2:16-cv-0682
Commissioner of Social Security,:
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff, Barbara J. Dudley, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.
Those applications were filed on
November 17, 2014, and alleged that Plaintiff became disabled on
September 1, 2014.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on January 21, 2016.
In a decision dated February 3, 2016, the
ALJ denied benefits.
That became the Commissioner’s final
decision on May 17, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on September 19, 2016.
Plaintiff filed a
statement of errors on January 13, 2017, to which the
Commissioner responded on April 28, 2017.
Plaintiff did not file
a reply brief, and the case is now ready to decide.
Plaintiff’s Testimony at the Administrative Hearing
Plaintiff, who was 56 years old as of the date of the
hearing and who has a high school education as well as nurse’s
aide training, testified as follows.
Her testimony appears at
pages 56-68 of the administrative record.
Plaintiff first testified that she filed her disability
application due to pain in her lower back.
She did take care of
her grandchildren for several months in 2014.
She also said that
her husband was disabled and had had several back surgeries, the
most recent being in 2015.
The last time Plaintiff worked was for Dollar General, a job
she held for more than seven years.
She was fired because of a
shortage in her cash drawer, something she denied.
a cashier and stock clerk.
She had been
After being fired, she did look for
work, but discontinued doing so because of her back pain.
taking the job at Dollar General, she worked part-time as a
kitchen helper and housekeeper.
When asked why she could no longer work, Plaintiff said that
she could not handle stress or being around people.
started mental health counseling about a month prior to the
Plaintiff said that she was able to do some cooking and
housework, although that was interrupted by pain.
for prolonged periods.
She could sit
She had been taking Celexa and it had
helped with her depression for some time, but not more recently.
She only left home to see the doctor or go grocery shopping, and
in the grocery store she waited until an aisle was empty before
she would enter it.
She had no hobbies and no social activities.
The Medical Records
The pertinent medical records are found beginning at page
230 of the administrative record.
The records relating to a
potential mental impairment, which is the issue raised by
Plaintiff’s statement of errors, can be summarized as follows.
Plaintiff saw her general practitioner on April 16, 2014 for
a follow-up appointment.
She had just become insured again and
wanted to restart Celexa, which in the past had helped her with
depression and anxiety.
Her Celexa prescription was refilled
although no psychological symptoms were noted in the record of
That appears to be the only treatment
record relating to depression or anxiety.
Dr. Swearingen conducted a consultative psychological
evaluation on February 18, 2015.
Plaintiff reported being unable
to be around people and seldom leaving her room.
She also said
that she had difficulties dealing with people in authority.
had never had psychological counseling.
While working, she said
she had some difficulty getting along with co-workers and also
some reading difficulties.
She could no longer deal with work
She was still the guardian for two grandchildren and
she could cook simple meals for them.
Dr. Swearingen observed
that Plaintiff’s affect was flat and blunted and that she
reported feelings of depression and worthlessness.
shaking at various times during the interview.
She took a long
time to complete simple arithmetic calculations and she appeared
to function in the low average to borderline range.
Swearingen diagnosed major depressive disorder and PTSD.
thought that Plaintiff’s psychological impairments would
moderately affect her in the workplace, that she would need
additional practice opportunities and directions if she were
asked to master new tasks, that she might have problems with
sustained attention and concentration due to defensiveness when
presented with tasks she could not understand or perform, that
she had a history of disrupted interpersonal relationships, and
that her emotional instability, depression, and anxiety would
likely diminish her coping skills.
She would perform better in a
A state agency psychologist also expressed opinions about
Plaintiff’s mental functional capacity.
Dr. Tishler said her
impairments were severe and that she needed to work in an
environment that did not require mathematical calculations and
which was slow-paced and not requiring making judgments or
decisions for others.
He also concluded that she was moderately
limited in her ability to deal with others and should not deal
with the general public on a frequent basis.
Lastly, she would
need supervision when attempting to adapt to changes in the
A second state agency psychologist, Dr.
Jenkins, concluded, as part of the reconsideration process, that
although Plaintiff had a severe affective disorder and a severe
anxiety disorder, there was insufficient evidence to evaluate the
functional limitations arising from those disorders.
The Vocational Evidence
Lynne M. Kauffman testified as the vocational expert in this
Her testimony begins at page 69 of the administrative
Ms. Kauffman began by identifying and classifying
Plaintiff’s past jobs.
She said that the stock clerk job was
heavy and semiskilled.
Plaintiff had also worked as a packager,
which is a medium unskilled job.
She had no other full-time
Next, Ms. Kauffman was asked questions about a hypothetical
person who could work at the medium exertional level, who could
climb, kneel and crawl frequently and occasionally stoop and
She said that such a person could do the job of
packager, as well as other medium unskilled jobs like cleaner,
kitchen helper, and dietary aide.
Responding to questions from Plaintiff’s counsel, Ms.
Kauffman next testified that someone who could neither squat nor
kneel could still do the packager job.
Further, if the person
needed to be redirected by a supervisor every thirty minutes, he
or she could not maintain unskilled employment.
The same would
be true if the person could not do simple repetitive tasks.
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 36-4-
48 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 alleged
Going to the next step of the sequential evaluation
process, the ALJ concluded that Plaintiff had severe impairments
including osteoarthritis of the right knee and mild diffuse
degenerative disc disease of the lumbar spine.
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 medium
exertional level, could climb frequently, could occasionally
stoop or crouch, and could kneel or crawl frequently.
With these restrictions, the ALJ concluded that Plaintiff,
could do her past relevant work as a packager.
A person who can
do his or her past relevant work is not disabled under the Social
Consequently, the ALJ decided that Plaintiff was
not entitled to benefits.
Plaintiff’s Statement of Errors
In her statement of errors, Plaintiff raises a single issue
- that the ALJ erred by not finding that Plaintiff had a severe
The ALJ’s decision is reviewed under this
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).
The ALJ explained his decision not to find a severe mental
impairment in the following way.
He recognized that Dr.
Swearingen had done a consultative examination and summarized Dr.
Swearingen’s findings as well as the symptoms which Plaintiff
reported to him.
After restating Dr. Swearingen’s
conclusions, the ALJ gave little weight to them because they
appeared to be based on Plaintiff’s own subjective complaints and
because Plaintiff “rarely complained of any mental health
symptoms during medical checkups” and had only recently begun to
see a mental health counselor.
He then gave great
weight to the opinion of the second state agency psychologist to
the effect that the record did not contain sufficient evidence to
make a residual functional capacity finding, giving little weight
to Dr. Tishler’s conclusions as lacking objective support in the
record and as being inconsistent with Plaintiff’s activities of
daily living, including being able to shop and to care for her
husband and grandchildren.
He concluded with this
statement: Plaintiff’s “medically determinable mental impairments
of depression and borderline intellectual functioning do not
cause more than minimal limitation of her ability to perform
basic mental work activities and are therefore nonsevere.”
The ALJ then went through the “B” criteria, finding only mild
limitations in the first three areas and no episodes of
decompensation, which, again, led to the conclusion that her
mental impairments were nonsevere.
He did not further discuss
any mental impairments in making his residual functional capacity
Plaintiff identifies several areas where, in her view, the
ALJ committed reversible error.
First, she takes issue with the
ALJ’s reliance on the opinion of the second state agency
psychologist, noting that the opinion of that psychologist
supports the existence of severe impairments, and that the
primary reason that the psychologist did not express an opinion
as to residual functional capacity was the inability to contact
either Plaintiff or her representative.
Second, she contends
that the rejection of Dr. Swearingen’s opinion was not based on
substantial evidence because, in addition to listening to
Plaintiff’s complaints, Dr. Swearingen observed specific
manifestations of severe mental impairments including shaking,
inconsistent eye contact, minimal facial expressiveness, monotone
voice, psychomotor retardation, and an excessively long time to
perform simple arithmetical calculations.
Third, she contends
that the ALJ’s outright rejection of Dr. Tishler’s conclusions
was improper because that opinion was supported by Dr.
Swearingen’s report and was not inconsistent with Plaintiff’s
reported daily activities.
In the memorandum in opposition, the Commissioner responds
in detail to each of these arguments.
As to Dr. Jenkins’
opinion, the Commissioner agrees that to the extent that the ALJ
read this opinion to mean that Plaintiff had no severe mental
impairments, that was likely an error, but that error was
harmless because the ALJ found other severe impairments and
proceeded to the next steps of the sequential evaluation process.
As to the ALJ’s rejection of both Dr. Tishler’s and Dr.
Swearingen’s opinions, the Commissioner argues that the ALJ
properly concluded that both opinions conflicted with the record
evidence and that they were based primarily on Plaintiff’s
reports of symptoms rather than on any objective evidence.
Court does not find these arguments persuasive.
It is a rare case where an ALJ is justified in disregarding
the opinion of every mental health professional who has either
examined a claimant, or reviewed the records, and found the
claimant to be suffering from one or more severe impairments.
This is simply not one of those cases.
The ALJ did err by
misinterpreting Dr. Jenkins’ opinion, failing to recognize that
Dr. Jenkins found the existence of two separate severe mental
It is unclear why Dr. Jenkins’ inability to contact
Plaintiff’s representative precluded her from evaluating the
limitations arising from these impairments; she simply stated
that she “[n]eeded perm contact of info from rep.
responded to calls or letters and there is insufficient evidence
to make a medical determination.”
state agency, even on reconsideration, found Plaintiff’s report
of psychologically-based symptoms “partially credible.”
The only reasonable conclusion to be drawn from the record
is that all of the mental health professionals found severe
And although it is true that the ALJ found
severe physical impairments and proceeded to the fourth step of
the sequential evaluation process, because he did not take any
mental impairments or limitations into account at that stage of
the case, the harmless error analysis set forth in cases like
Maziarz v. Sec'y of HHS, 837 F.2d 240, 244 (6th Cir. 1987), does
See, e.g., Simpson v. Comm'r of Social Security, 344
Fed.Appx. 181, 190-91 (6th Cir. Aug. 27, 2009)(finding that the
ALJ erred by not considering a non-severe mental impairment when
making the residual functional capacity finding – the same
situation involved in this case); see also Rose v. Comm'r of
Social Security, 2015 WL 6735313, *5 (S.D. Ohio Nov. 4,
2015)(“[a]s this Court has repeatedly held, the harmless error
analysis advanced by the Commissioner is appropriate only when
the ALJ properly considered any functional limitations arising
from non-severe impairments when crafting his residual functional
capacity finding”), adopted and affirmed 2015 WL 7779300 (S.D.
Ohio Dec. 2, 2015).
The error is compounded by the ALJ’s discussion and
discounting of the opinions of both Dr. Swearingen and Dr.
The reasons given are perhaps sufficient to discount
some of the functional limitations which each psychologist
imposed, but not to justify rejecting the basic conclusion each
reached as to the presence of a severe impairment.
psychological interviews depend to some extent on the claimant’s
self-reported symptoms, but to disregard all of the objective
indications of a severe mental impairment just because subjective
complaints are a part of psychological evaluations is too much of
Certainly, Plaintiff engaged in some daily activities
which indicated that she might not be as limited as either Dr.
Tishler or Dr. Swearingen said - although her grocery shopping,
as she described it, was consistent with significant
psychological limitations - but that does not mean there were no
limitations at all.
In that regard, this case is very much like
Combs v. Colvin, 2015 WL 1606160 (E.D. Ky. April 8, 2015), where
the court also determined that an ALJ’s failure to ascribe any
work-related limitations to diagnosed psychological conditions
was error, and rejected a similar effort to discount completely
the opinion of an examining psychologist because that source took
the claimant’s subjective complaints into account.
It may well be that, even with some psychological
limitations - either those expressed by Dr. Tishler or Dr.
Swearingen - or with some lesser number of restrictions,
Plaintiff can still perform substantial gainful activity.
however, is not the question.
The question is whether the ALJ
erred by not assigning any restrictions at all to conditions
which, based on the record, are severe.
Because the ALJ
committed that error, the case must be remanded for further
evaluation of Plaintiff’s diagnosed mental impairments.
Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
the 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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