Seymour v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATION that Plaintiff's statement of errors be overruled and that judgment be entered in favor or the Defendant Commissioner. Objections to R&R due by 6/22/2017. Signed by Magistrate Judge Terence P. Kemp on 6/8/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Patty S. Seymour,

:

Plaintiff,

:

v.

:

Commissioner of Social Security,:
Defendant.

Case No. 2:16-cv-0744
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Patty S. Seymour, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for supplemental security income.

That

application was filed on December 20, 2012, and alleged that
Plaintiff became disabled that day.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on January 6, 2015.
ALJ denied benefits.

In a decision dated February 8, 2015, the
That became the Commissioner’s final

decision on May 31, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on October 4, 2016.

Plaintiff filed a

statement of errors on January 30, 2017, to which the
Commissioner responded on May 15, 2017.

Plaintiff did not file a

reply brief, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 54 years old as of the date of the
hearing and who has a high school education but who was also in
special classes, testified as follows.

Her testimony appears at

pages 51-66 of the administrative record.
Plaintiff was first asked about her living situation.

She

resided by herself in Section 8 housing in Chillicothe.
a friend who would take her places, as would her son.
not cook, but family members brought her food.

She had

She did

She testified

about her high school education, noting that she was in separate
classes and never learned to read.

She never worked full-time

but did work in order to get financial assistance from the State.
She did light cleaning at a Legal Aid office.
Plaintiff said that she could not work because she was
afraid to be out in the community.
child.

She had been abused as a

She did go to church occasionally and she shopped, but

only when someone else took her.

Plaintiff said that she sought

counseling in 2011 or 2012 due to relationship problems, but she
had told her more recent counselor about the childhood abuse.
She was doing better with medication and after separating herself
from the other person in her relationship.
III.

The Medical Records

The pertinent medical records - those relating to
Plaintiff’s mental impairments - are found beginning at page 339
of the administrative record.

They can be summarized as follows.

Chronologically, the first report comes from Dr. Yee, a
psychologist who evaluated Plaintiff in February, 2011.
Plaintiff told her that she had a history of depression dating
back to her school days.
abuse.

She denied any history of substance

Her social presentation was appropriate but withdrawn and

some psychomotor retardation was noted.
measured at 67.

Her full-scale IQ was

Dr. Yee rated Plaintiff’s GAF at 65 and thought

that Plaintiff would be a good candidate for vocational training
once her mood was stabilized (Tr. 501-10).

Several years later,

Dr. Yee was asked to fill out a mental residual functional
capacity report, and she described Plaintiff as having a large
number of marked impairments, plus an extreme limitation on her
ability to deal with work stress.
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(Tr. 513-14).

Next, the record contains a report from Dr. Peterson, also a
consultative examiner, who evaluated Plaintiff on March 25, 2013.
Plaintiff reported that she was unable to work due to an
inability to read and write and because of past abuse.

She said

that she was a “slow learner” when in school.

She was not taking

any medication at the time of the evaluation.

Plaintiff told Dr.

Peterson that she had lost jobs in the past due to her learning
difficulties but that she got along well with coworkers and
supervisors.

She had gone to counseling in the past, but not

since 2008.

On a daily basis, she did word searches, household

chores, and went shopping.

She did some socializing with a

friend who took her to the store and helped her to pay bills.
Dr. Peterson observed that she had difficulty responding to
questions and that she had to be redirected frequently.
appeared mildly dysphoric.

She occasionally felt depressed but

said that her mood was normal most of the time.
had nightmares.

Her mood

Sometimes she

Dr. Peterson noted that her concentration and

persistence on tasks was poor.

On testing, she scored 53 on the

IQ scale and her working memory composite score was very low.
Dr. Peterson diagnosed a learning disorder, borderline
intellectual functioning, and a personality disorder with
dependent features.

She rated Plaintiff’s GAF at 60 for symptoms

and 50 for functioning and concluded that she could complete
simple tasks if directions were repeated and clearly
communicated; that she could maintain concentration and
persistence for such tasks; that she would perform best in an
environment where there was limited contact with others; and that
there would be limits on her ability to respond appropriately to
stress and pressure in a work setting.

(Tr. 370-76).

Prior to that evaluation, Plaintiff had been seen for a
diagnostic assessment in 2011 for assistance in maintaining
sobriety.

She then attended a number of counseling sessions
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which focused on drinking and relationship issues.

An updated

assessment was done in October, 2012, and shows a diagnosis of
alcohol dependence in remission and personality disorder.

Her

GAF was rated at 56 at that time and notes showed difficulties
maintaining social relationships and a learning disability.
402).

(Tr.

After that assessment, she attended counseling sessions on

an inconsistent basis and was not making much progress toward her
goals.

(Tr. 417).

She began seeing a new counselor on February

9, 2013, and a different one several weeks later.

The initial

sessions with those counselors dealt with relationship issues and
substance abuse.

(Tr. 472-83).

Later in 2013, Plaintiff

commented to a provider that she was not interested in treatment
for any PTSD symptoms and that she simply wanted to see a doctor
and receive medication so she could get SSI benefits.

(Tr. 558).

In 2014, Plaintiff received treatment at Fairfield
Healthcare Professionals in Lancaster, Ohio.
included major depression and anxiety.

Her diagnoses

She was treated with

various medications and told to follow up with counseling.
Medications seemed to help, but a note from Melanie Lint, a CNS,
dated July 9, 2014 said that she was still unable to work.
519).

(Tr.

Ms. Lint had rated Plaintiff’s GAF at 50 in a note from

December 3, 2013.

(Tr. 525-26).

Other notes from a counselor

dated 2014 show that Plaintiff reported she was doing well and
was socializing and getting involved in activities but was still
having relationship issues.
Dr. Yee wrote a letter on December 9, 2014, indicating she
met with Plaintiff as a follow-up from the 2011 evaluation.

She

reported that Plaintiff had symptoms of depression and anxiety
and was easily emotionally overwhelmed.

Dr. Yee believed that

the records from Ms. Lint supported the presence of depressive
symptoms since 2011, and she reaffirmed her conclusion that
Plaintiff had marked impairments in the areas of cognitive
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functioning, emotional functioning, and social functioning, and
that she could not sustain an 8-hour workday.

(Tr. 543-46).

Also in December, 2014, Plaintiff’s counselor, Beth Whalen,
filled out a functional capacity form indicating many marked and
extreme limitations.

She also rated Plaintiff’s GAF at 48 (Tr.

661-63).
State agency psychologists or physicians also reviewed the
records and expressed opinions about Plaintiff’s functional
capacity.

Dr. Rudy concluded that Plaintiff had severe

impairments but that any limitations were moderate (except for a
marked inability to understand and remember detailed
instructions) and that she could carry out simple tasks as long
as she did not have to sustain high levels of social interaction.
(Tr. 84-86).

Dr. Demuth mostly agreed, indicating that Plaintiff

also could adapt to infrequent changes in a relatively static
work environment.

(Tr. 98-101).

Both of these opinions were

rendered in 2013, without the benefit of subsequent treatment
records or opinions.
IV.

The Vocational Evidence

Carl Hartung testified as the vocational expert in this
case.

His testimony begins at page 67 of the administrative

record.
Mr. Hartung was first advised by the ALJ that there was not
any past relevant work.

Next, Mr. Hartung was asked questions

about a hypothetical person who could work at all exertional
levels but who could understand, remember, and carry out only
simple instructions and make judgments on simple work.

The

person could also respond appropriately to usual work situations
in a routine work setting that is repetitive from day to day with
few and expected changes and could have occasional interaction
with supervisors and coworkers on trivial matters.

Also, the

individual could not deal with high production quotas such as

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piece work or assembly line work, nor could the person do work
with strict time requirements.
In response, Mr. Hartung said that such a person could do
jobs like kitchen helper, which is performed at the medium
exertional level, as well as laboratory equipment cleaner and
cook’s helper.

He gave numbers for these jobs as they exist in

the national economy.

Mr. Hartung also testified that if the

person in question had to be taught tasks as opposed to reading
instructions, that would not reduce the number of unskilled jobs
that the person could do.

The jobs he identified also did not

require adding or subtracting numbers, nor did they involve
contact with the general public.
The ALJ then asked Mr. Hartung how the need for a supervisor
or coworker to monitor job performance on a regular and
continuous basis would affect the ability to do those jobs.

He

said that such supervision would not be tolerated in the
workplace.

He also testified that more than ten absences per

year would preclude the performance of unskilled work, as would
being off task for more than 10% of the workday.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1834 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 her alleged
onset date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe impairments
including a learning disorder, borderline intellectual
functioning, a personality disorder, and a depressive 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).

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Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff could work at all
exertional levels.

However, she had various nonexertional

limitations, including being able to understand, remember, and
carry out only simple instructions and make judgments on simple
work, being able to respond appropriately only to usual work
situations in a routine work setting that is repetitive from day
to day with few and expected changes, and being able to have only
occasional interaction with supervisors and coworkers on trivial
matters.

Also, she could not deal with high production quotas

such as piece work or assembly line work or work with strict time
requirements and she had to be taught tasks one on one as opposed
to reading them.

Finally, she could occasionally complete basic

math, defined as addition and subtraction of two-digit numbers.
The ALJ found that Plaintiff had no past relevant work.
With the restrictions he identified, however, the ALJ concluded
that Plaintiff, could perform the jobs about which the vocational
expert testified, including kitchen helper, laboratory equipment
cleaner, and cook helper.

He also found that these jobs exist in

significant numbers in the national economy.

Consequently, the

ALJ decided that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Errors

In her statement of errors, Plaintiff raises two issues.
She argues that (1) the ALJ’s residual functional capacity
assessment was not based on substantial evidence, and (2) the ALJ
did not properly weigh the GAF scores.

The ALJ’s decision is

reviewed under this 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

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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 first argues that the ALJ erred by focusing almost
exclusively on an apparent improvement in Plaintiff’s condition
in the latter half of 2014, to the exclusion of the earlier time
period, which is also encompassed within her claim for
disability.

She asserts that the ALJ must have disregarded, and

therefore failed to explain, the evidence showing the state of
her mental condition from her application date of December 20,
2012, through the middle of 2014, and that his opinion is
therefore not based on substantial evidence.

She does not

dispute the ALJ’s conclusion that records from 2014 show a
brighter affect and a less depressed mood after being prescribed
Lexapro, nor that the treatment notes show that she felt ready to

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take control over her life.
The Court finds the Commissioner’s counter-argument on this
point to be persuasive.

As the Commissioner notes, from

December, 2012, to December, 2013, Plaintiff did not seek
treatment for depression or anxiety.

She was in counseling, but

its focus was on alcohol abuse and relationship issues, and she
was not taking any medication for mental impairments.

Within a

few months after beginning treatment, her condition improved, and
it remained good throughout 2014.

In addition to analyzing the

records for that time period, the ALJ considered and gave
significant weight to the opinion of the consultative examiner,
Dr. Peterson, who conducted her evaluation of Plaintiff on March
25, 2013, and gave great weight to the opinions of the two state
agency reviewers, both of whom expressed those opinions in 2013.
The ALJ also extensively summarized and evaluated Plaintiff’s
activities of daily living throughout the relevant time period,
as well as the statements made by Plaintiff about her
psychological limitations and her motivation for seeking
treatment, and concluded, based on all of the evidence, that
although Plaintiff was perhaps more limited in the area of social
functioning than the opinions of the state agency reviewers
suggested, she could still adapt to simple, routine work as
described in the questions asked to the vocational expert.

In

short, the premise of Plaintiff’s argument - that the ALJ simply
disregarded any evidence about the severity of her mental
impairments from 2013 and early 2014 - is not borne out by the
record.
It is important to remember that the ALJ is the primary
fact-finder in a social security case.

As the Court of Appeals

has repeatedly pointed out, deference is due to an ALJ’s factual
determinations

“even if there is substantial evidence in the

record that would have supported an opposite conclusion, so long
as substantial evidence supports the conclusion reached by the
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ALJ.”

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997).

is the case here.

That

Consequently, Plaintiff’s first statement of

error does not provide any basis for reversal of the ALJ’s
decision.
B.

GAF Scores

Plaintiff’s only other argument is that the ALJ did not
directly discuss all of the GAF scores found in the record.
According to Plaintiff, her GAF was rated on ten separate
occasions, but the ALJ cited to only four of them, and discussed
only one in depth.

This omission, Plaintiff contends, requires

that the Court remand the case for further consideration of the
totality of the GAF scores.
Again, the Commissioner has the better of this argument.

It

is correct that an ALJ is not required to discuss each item of
evidence separately, and Plaintiff has cited no cases holding or
implying that the failure to discuss one or more GAF scores in
the record is automatically reversible error.

The ALJ did

consider the opinions of all, or almost all, of the sources who
rated Plaintiff’s GAF, and cited to several of them in his
decision.

Only a few were below 50, and as the Court of Appeals

noted in Kornecky v. Comm’r of Social Security, 167 Fed.Appx.
496, 511 (6th Cir. Feb. 9, 2006), “a 51–60 reflects the opinion
that the subject has moderate symptoms or moderate impairment of
social or occupational functioning.”
here.

That is what the ALJ found

Further, the Kornecky court also commented that “we are

not aware of any statutory, regulatory, or other authority
requiring the ALJ to put stock in a GAF score in the first
place.”

Id.

This Court has recognized that GAF scores, while

perhaps helpful in assessing a social security claimant’s level
of functioning, provide only a “snapshot” of that functioning and
do not correlate directly to the disability criteria used by the
Social Security Administration.

See, e.g., Comberger v. Colvin,

2015 WL 5013721 (S.D. Ohio, July 28, 2015), adopted and affirmed
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2015 WL 5004596 (S.D. Ohio Aug. 24, 2015).

The Court therefore

finds that the ALJ’s failure explicitly to cite and analyze each
GAF score in the records is not grounds for reversal or remand.
VII.

Recommended Decision

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 Defendant Commissioner.
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
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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