Crawford v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that 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. Objections to R&R due by 5/26/2017. Signed by Magistrate Judge Terence P. Kemp on 5/12/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Patricia J. Crawford,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:16-cv-799
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Patricia J. Crawford, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for disability insurance benefits.

That

application was filed on June 8, 2012, and alleged that Plaintiff
became disabled on August 8, 2010.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on June 4, 2014.

In a decision dated September 5, 2014, the ALJ

denied benefits.

That became the Commissioner’s final decision

on March 22, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on October 24, 2016.

Plaintiff filed a

statement of errors on March 29, 2017, to which the Commissioner
responded on April 19, 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 55 years old as of the date of the
hearing and who has a high school education with some college
work, testified as follows.

Her testimony appears within pages

43-68 of the administrative record.

Plaintiff was first asked about her past work.

She

testified that her last job was as a delivery driver for dental
products.

She had also stocked books and magazines at grocery

stores, which was a part-time job, worked at a bakery, and sorted
clothing.

Some of those jobs were through temporary agencies

Plaintiff also testified that she could not work due to
emotional stress.

She was taking care of her parents and that

placed demands on her, including spending 12-13 hours per day
caregiving.

She washed clothes, assisted her parents with daily

activities, and cooked meals.

She had tried to go back to work

but that lasted only one day.

Plaintiff also mentioned that when

she was a delivery driver she had an issue with falling asleep,
and that she could not stand for eight hours in a workday due to
plantar fasciitis.
III.

The Medical Records

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

They can be summarized as

follows.
The first record is a report of a consultative psychological
examination done by Dr. James Tanley.
on August 6, 2012.

He interviewed Plaintiff

Her chief complaint was depression since her

father was diagnosed with Alzheimer’s disease.

She had not

gotten any treatment due to lack of funds and insurance.

She

also reported suffering from a right knee injury and plantar
fasciitis but she did not take any medications.

Her days

consisted of seeing her husband off to work and then caring for
her parents.

Dr. Tanley noted that Plaintiff’s affect was

appropriate and she did not exhibit signs of anxiety.

He

diagnosed an adjustment disorder with depressed mood and rated
Plaintiff’s GAF at 60.

He also concluded that she could function

in the workplace within the average range of intelligence, could
have some problem dealing with instructions of increasing
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complexity, might encounter some issues in behaving appropriately
in a work setting due to her depressed state, and was “a bit at
risk” in her ability to deal with work stress.

(Tr. 234-37).

That report was reviewed by two state agency psychologists.
The first, Dr. Hoyle, concluded that Plaintiff’s depression
caused only mild restriction in her activities of daily living
and in maintaining concentration, persistence, and pace, no
restrictions in her social functioning, and no episodes of
decompensation.

Under those circumstances, her disorder was

determined to be “nonsevere.”

(Tr. 96).

The second reviewer,

Dr. Goldsmith, also had available to him a report from Dr.
Rowland, another consultative examiner, so the Court will
summarize that report before explaining the conclusions which Dr.
Goldsmith reached.
Dr. Rowland saw Plaintiff on January 2, 2013.

She provided

him with basically the same background information she had given
to Dr. Tanley.

She reported no social activities or hobbies.

She was able to do all types of household chores.

She presented

as unhappy, distressed, and worried, and she was depressed with a
blunted affect.

Her reported energy level was low, her memory

was not as good as it had been, and she occasionally had trouble
staying on task.

Dr. Rowland rated Plaintiff’s GAF at 60 and

diagnosed a depressive disorder of moderate severity.

He thought

that she could understand work instructions consistent with her
level of intellectual functioning, could maintain attention and
concentration to perform both simple and multi-step tasks, would
draw “negative attention” from supervisors due to difficulties
with motivation, energy, and interest, and would have some
difficulties responding to pressure in a work setting.

(Tr.

249-56).
Dr. Goldsmith also concluded that any psychological disorder
from which Plaintiff suffered was not severe.
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He explained his

conclusions, however, only with reference to Dr. Tanley’s report,
finding that Dr. Tanley did “not indicate that [claimant] is
indefinitely (sic) impaired” in the area of dealing with work
stress and the findings “support not severe limitations.”

It is

not apparent from the record how Dr. Goldsmith interpreted Dr.
Rowland’s findings, particularly with respect to stress
tolerance.

(Tr. 109).

There are also few records relating to Plaintiff’s physical
condition.

She attended a consultative examination with Dr.

Grodner on September 6, 2012, telling him that she had some pain
in her foot and knee and some swelling with prolonged weightbearing.

She did household chores but had to stop frequently.

Her physical examination showed some decreased range of motion of
the right knee with some mild soft tissue swelling.

X-rays

showed some mild narrowing of the joint space in the right knee.
Dr. Grodner thought she would have some difficulties with
kneeling, squatting, repetitive stair climbing, or prolonged
weight bearing such as for more than an hour at a time.

He said

she could do both sedentary and light work, however, as well as
“even modified moderate activity.”

(Tr. 241-43).

The only other

medical records are from treatment received at Riverside
Methodist Hospital, and they do not appear to show any additional
functional limitations.
Again, state agency physicians reviewed these records.

Dr.

Bolz concluded that Plaintiff could do light work with some
restrictions, including only occasional use of right foot
controls.

(Tr. 97-99).

Dr. Amiri, however, thought she could do

medium work, again with some restrictions, although not a
restriction of the use of foot controls.
IV.

(Tr. 110-12).

The Vocational Evidence

Bruce Holderead testified as the vocational expert in this
case.

His testimony begins at page 34 of the administrative
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record.
Mr. Holderead began by identifying and classifying
Plaintiff’s past jobs.

He said that she had worked as a

newspaper delivery driver and that it was semi-skilled occupation
usually performed at the medium exertional level.

She was also a

stock clerk, which is also semi-skilled and typically done at the
heavy exertional level, although Plaintiff’s job was medium work.
To the extent she was also an outside deliverer, that was an
unskilled, light job.

Lastly, garment sorter is a light

unskilled job as well.
Next, Mr. Holderead was asked questions about a hypothetical
person who could work at the medium exertional level, who could
climb ramps and stairs frequently, who could occasionally climb
ladders, ropes, and scaffolds, who could do unlimited balancing
and stooping, and who could kneel, crawl, and crouch frequently.
He said that such a person could work as a garment sorter and
outside deliverer as typically performed, and as a stock clerk as
Plaintiff had done that job.

If, however, the person had to miss

one day of work per week, he or she could not be gainfully
employed.

If the person could not do commercial driving, the

deliverer position and stock clerk position would be eliminated,
but the person could still work as a garment sorter.

Also, such

a person could be an industrial cleaner, linen room attendant,
and hospital cleaner.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1625 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, 2015.

Second, she found that Plaintiff had

not engaged in substantial gainful activity since her alleged

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onset date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe impairments
including osteoarthritis of the knee 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 medium
exertional level, could climb ramps and stairs frequently, could
occasionally climb ladders, ropes, and scaffolds, could do
unlimited balancing and stooping, and could kneel, crawl, and
crouch frequently.
With these restrictions, the ALJ concluded that Plaintiff,
could do her past relevant work as a deliverer, stock clerk, and
garment sorter.

A person who can do his or her past relevant

work is not disabled under the Social Security Act.
Consequently, the ALJ decided that Plaintiff was not entitled to
benefits.
VI.

Plaintiff’s Statement of Errors

In her statement of errors, Plaintiff states that her case
should be reconsidered because the ALJ had very few medical
records to review, that her mental state had worsened, and that
her physical condition made it hard for her to sit, stand, or
walk.

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
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).

It is "'more than a mere

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scintilla.'" Id.
Cir. 1976).

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).
The Court first addresses Plaintiff’s assertion that the
record should contain more medical records and that her condition
has worsened since the ALJ made her decision.

Plaintiff does not

suggest what additional records might be available, and it
appears that she was not getting regular treatment from either a
doctor of physical medicine or a mental health provider.

The

Commissioner arranged for two consultative psychological
evaluations and one physical examination, and also obtained
opinions from four different state agency physicians or
psychologists.
Although the ALJ may, in some cases, have a special duty to
develop the record fully and fairly when dealing with an
unrepresented claimant, see Lashley v. Sec’y of HHS, 708 F.2d
1048, 1051 (6th Cir. 1983) - especially if that claimant is not
really capable of presenting a coherent case - the Court of
Appeals has also emphasized that “the claimant bears the ultimate

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burden of proving disability” even when he or she does not have
counsel.

See, e.g., Wilson v. Comm’r of Social Security, 280

Fed.Appx. 456 (May 29, 2008).

Further, some courts have read

cases like Lashley and Wilson to apply primarily to proceedings
in the ALJ’s hearing room, and not to the need to obtain medical
records on behalf of a claimant.

See, e.g., Morgan v. Astrue,

2010 WL 3723992 (E.D. Tenn. June 30, 2010)(also suggesting that
an ALJ may have a duty to explain to a claimant how to obtain and
submit records if the ALJ is aware of their existence and that
they are relevant to the disability inquiry).

Here, there is

nothing to indicate that either the ALJ or Plaintiff were aware
of any additional pertinent records.

The Court finds that the

ALJ acted reasonably by making a decision based on the
consultative examinations and state agency reviewer opinions, all
of which spoke directly to the way in which Plaintiff was limited
by her impairments.
Further, the Commissioner is correct that whether
Plaintiff’s conditions have gotten worse since the ALJ’s decision
issued is not a ground for reversal or remand.

This Court’s

review of an ALJ’s decision is generally limited to the record
which existed at the time of the hearing.

Ordinarily, “federal

courts cannot consider evidence not presented to the ALJ.”
Elliott v. Apfel, 28 Fed.Appx. 420, 423 (6th Cir. Jan. 22, 2002),
citing Cotton v. Sullivan, 2 F.3d. 692, 696 (6th Cir. 1993).
There is a procedure for considering new evidence and ordering a
remand based on that evidence, but it must be “material” in the
sense that it would cast doubt on the correctness of the ALJ’s
decision at the time it was made.

As the Court of Appeals

pointed out in Sizemore v. Sec’y of HHS, 865 F.2d 709, 712 (6th
Cir. 1988), “[i]f ... the claimant's condition had seriously
degenerated, the appropriate remedy would have been to initiate a
new claim for benefits as of the date that the condition

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aggravated to the point of constituting a disabling impairment.”
See also Oliver v. Sec’y of HHS, 804 F.2d 964, 966 (6th Cir.
1986)(declining to order a remand where a claimant asserted that
new evidence “shows his condition has worsened” because that did
not affect the validity of a decision rendered more than a year
before).

Here, Plaintiff has not submitted any new evidence, but

if it shows only that she has gotten worse since September of
2014, it would not provide the Court with a basis for remanding
the case to the Commissioner.
That leaves only the question of whether the ALJ had a
substantial, or reasonable, basis for finding that Plaintiff
still retained the ability to do the jobs identified by the
vocational expert, particularly her past occupations.

The Court

has little concern with the decision that Plaintiff could do
medium work with only a few restrictions.

That is the conclusion

reached by Dr. Amiri, and the ALJ explained why she thought his
opinion, rather than Dr. Bolz’s opinion, was the more credible.
She noted that there were very few findings made by Dr. Grodner,
that Plaintiff’s daily activities in caring for her parents
seemed consistent with the ability to do medium work, and that
Dr. Amiri’s opinion was more consistent with the totality of the
evidence.

A reasonable person could have reached that conclusion

on the basis of this record.

When the ALJ is presented with a

choice among various opinions and gives good reasons for choosing
one over the other, the Court’s review is limited to making sure
those reasons are supported by the record.

As this Court has

said, “it is not the Court's job, when performing a ;substantial
evidence’ review, to substitute its judgment for that of the ALJ.
An ALJ has a ‘zone of choice’ when interpreting the record, and
so long as the ALJ makes a choice which finds reasonable support
in that record, that choice is insulated from judicial reversal.”
Parker v. Comm’r of Social Security, 2016 WL 7438753, *5 (S.D.
Ohio Dec. 27, 2016), adopted and affirmed 2017 WL 131926 (S.D.
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Ohio Jan. 13, 2017); see also Buxton v. Halter, 246 F.3d 762, 773
(6th Cir. 2001)(“there is a ‘zone of choice’ within which the
Commissioner can act, without the fear of court interference”).
Because the ALJ here operated within that zone of choice as it
relates to Plaintiff’s physical limitations, the Court must
affirm that portion of the decision.
It is not so clear, however, that the ALJ properly
evaluated Plaintiff’s mental impairments.

There would appear to

be little dispute that, as to three of the four criteria (the “B”
criteria) used to evaluate the severity of such impairments
(which, under 20 C.F.R. Subpart P, Appendix 1, Section 12.00(C)
are activities of daily living, social functioning,
concentration, persistence, and pace, and episodes of
decompensation), Plaintiff had only a mild impairment or no
impairment at all.

However, as to concentration, persistence,

and pace, which encompass the ability to deal with the usual
stress and pressure of the workplace, both of the consultative
examiners expressed some reservations about how Plaintiff would
fare.

Both state agency psychologists rated Plaintiff’s

impairment in this area as “mild,” and that is what the ALJ found
as well.
In explaining her finding, the ALJ provided this rationale.
She attributed some weight to Dr. Tanley’s report that Plaintiff
might encounter some limitations in her ability to deal with work
stress, but concluded that his statement was vague and imprecise
because “‘some’ is not vocationally acceptable terminology.”
(Tr. 20).

She also viewed it as inconsistent with the mental

demands Plaintiff was facing by being a caregiver to her parents.
She likewise characterized Dr. Rowland’s statement about work
stress as “imprecise” and as not quantifying the extent of the
limitation.

(Tr. 21).

She then credited

Dr. Goldsmith’s opinion, without noting, however, that he
appeared to have disregarded or failed to address Dr. Rowland’s
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opinion.

She made no mention of Dr. Hoyle’s findings.

The ALJ recognized, in her discussion of the “B” criteria,
that the limitations addressed in that section of the decision
were not a residual functional capacity finding.

When she made

her residual functional capacity finding, the ALJ reiterated her
conclusion that Plaintiff’s mental impairments were not severe.
(Tr. 22).

She also found that there was no support for

Plaintiff’s claim that she was totally disabled from work due to
mental limitations.

When the ALJ made her ultimate finding as to

Plaintiff’s residual functional capacity, however, she did not
include any limitations at all arising from mental impairments,
and did not explain why she did not do so.
There are several problems with the ALJ’s method of
analysis.

First, it is well-established that “a finding of

severity as to even one impairment clears the claimant of step
two of the analysis and should cause the ALJ to consider both the
severe and non-severe impairments in the remaining steps.”
Simpson v. Comm’r of Social Security, 344 Fed.Appx. 181, 190 (6th
Cir. Aug. 27, 2009).

That means that non-severe impairments

cannot simply be ignored in crafting a residual functional
capacity finding.

Here, while the ALJ discussed Plaintiff’s

diagnosed mental impairments - and they were diagnosed by the
consultative examiners, whose findings in that regard were
accepted by the state agency psychologists - she did so only in
the context of whether they were disabling.

There is no evidence

in the administrative decision that the ALJ ever considered
whether those impairments had some impact on Plaintiff’s mental
residual functional capacity.

Given that both consultative

examiners said they did, the ALJ’s failure to quantify that
impact, or even attempt to do so, amounts to legal error.

And

that error is compounded by the fact that Dr. Goldsmith’s opinion
seems to have completely disregarded the conclusions reached by
Dr. Rowland even though his conclusion is more precise than the
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one offered by Dr. Tanley.
This case is very similar to Simpson, except there the ALJ
actually did discuss how the non-severe mental impairments
affected Plaintiff’s ability to work, but concluded that because
they were not severe, they produced no limitations.

That

finding, according to Simpson, is “contrary to controlling law.”
Id.

Here, the ALJ did not make that statement explicitly, but

the result is the same; the ALJ never considered whether
Plaintiff’s mental impairments affected her residual functional
capacity, and it can only be inferred that this failure was due
to the fact that the ALJ found those impairments not to be
severe.

That is especially evident from the discussion found at

Tr. 22, where the ALJ, after noting that Plaintiff asserted
disabling emotional problems, said that the evidence did not
support the existence of a severe mental impairment, that
Plaintiff’s complaints were “significantly exaggerated,” and that
her allegations were not “fully reliable.”

While that may

support a finding that the impairments were not severe, it says
nothing about whether they cause some limitations, particularly
in the area of dealing with work stress.

The ALJ’s later

statement that she “considered the statements of the consultative
psychologists” in reaching her residual functional capacity
finding (Tr. 24) is belied by the fact that she never discussed
why their statements about limitations were not factored into the
RFC finding.

All in all, the ALJ simply failed either to account

for the limitations stemming from Plaintiff’s diagnosed mental
impairments or to explain, in a way that the Court can review,
why she thought they had no effect on Plaintiff’s mental residual
functional capacity beyond the fact that they were not “severe.”
Since that line of reasoning conflicts with Simpson (which this
Court finds to be persuasive on this issue), a remand is
necessary.

See also Hicks v. Comm’r of Social Security, 2013 WL

3778947 (E.D. Mich. July 18, 2013).
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VII.

Recommended Decision

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.
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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