Sephel v. Commissioner for Social Security Administration

Filing 20

OPINION and ORDER that the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner of Social Security's decision. Signed by Judge George C. Smith on 9/11/17. (sem)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARON JEAN SEPHEL,
Plaintiff,
Case No.: 2:16-cv-873
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers

v.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
Plaintiff, Caron Sephel, brings this action under 42 U.S.C. § 405(g) for review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying her application for
supplemental social security income (“SSI”) and disability insurance benefits (“DIB”). This
matter is before the Court for an Order on Plaintiff’s Statement of Errors (ECF No. 12), the
Commissioner’s Memorandum in Opposition (ECF No. 18), Plaintiff’s Reply in Support (ECF
No. 19), and the administrative record. (ECF No. 9.) For the reasons that follow, the Court
OVERRULES the Plaintiff’s Statement of Errors and AFFIRMS the Commissioner’s decision.
I.

BACKGROUND

Plaintiff filed her application for benefits on June 7, 2011, alleging disability beginning
August 24, 2004.1 (R. at 254.) Plaintiff’s applications were denied initially on December 27,
2011, and upon reconsideration on January 11, 2013. (R. at 11.) Plaintiff sought a de novo

1

Although the ALJ stated Plaintiff’s alleged filing date was May 23, 2011, Plaintiff’s
applications reflect that she filed her application on June 7, 2011. (R. at 254.)

hearing before an administrative judge, who affirmed the Social Security Administration’s denial
of her claim on March 11, 2013. (R. at 11.) On January 15, 2015, the Appeals Council vacated
the decision and remanded the case for further consideration of her residual functional capacity,
suggesting that the decision did not include a sufficient rationale to support a finding that she
was restricted to sedentary work. (Id.) Administrative Law Judge John L. Shailer (“ALJ”) then
held a hearing on June 9, 2015, at which Plaintiff, represented by counsel, appeared through
video and testified. (R. at 44–57.) Bruce Growich, a vocational expert (“VE”) and Ronald
Kendrick, M.D., an impartial medical expert (“ME”) also appeared and testified at the hearing.
On August 12, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act. On July 12, 2016, the Appeals Council denied Plaintiff’s
request for review and adopted the ALJ’s second decision as the Commissioner’s final decision.
Plaintiff then timely commenced the instant action.
II.
A.

HEARING TESTIMONY

Plaintiff’s Testimony2
Plaintiff testified that she is currently staying with a friend and has been staying with her

friend for seven years. (R. at 54–55.) She also testified that her case manager has been helping
her by attending appointments with her, that she found an attorney for the hearing, who helps her
fill out forms. (R. at 53.)

2

The majority of Plaintiff’s testimony is related to her physical ailments that are not at issue at
this time.
2

B.

Vocational Expert3
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional

capacity (“RFC”) to the VE. (R. at 61–66.) Based on Plaintiff’s age, education, work
experience, and residual functional capacity, the VE testified that a similarly situated
hypothetical individual could perform the job of “machine tender/feeder” with 285,000 jobs
nationally and 6,200 jobs in Ohio, and 1,400 jobs in central Ohio, as well as perform work in
light assembly, with 450,000 jobs nationally, 8,200 jobs in Ohio, and 3,600 jobs in central Ohio.
(R. at 61–62.)
III.
A.

MEDICAL RECORDS

Sudhir Dubey, Psy. D.
On July 26 2011, Plaintiff underwent a psychological evaluation conducted by Dr.

Dubey. (R. at 369.) She reported to Dr. Dubey that she is married but has been separated from
her husband for six years and has since been in a three-year relationship with her boyfriend, with
whom she lives. (R. at 369–70.) Plaintiff reported that she takes pain medication, which she
finds helpful but has not previously received psychiatric treatment. (R. at 370.) Dr. Dubey
noted that Plaintiff has substance abuse problems. He described her appearance as appropriate
and her mannerisms and eye contact as within normal limits. (R. at 371.) He also noted that
“[s]he reports she was really drunk,” without explaining if Plaintiff was under the influence of
alcohol at the examination. (Id.) He found Plaintiff’s speech was coherent, her thought process
to be tangential, and her speed and quality of speech to be within normal limits. (Id.) He further
found she “appeared to be oriented to person, place, and time and evaluation [sic] situation. She

3

Medical Expert Ronald Kendrick, a physician and board certified orthopedic surgeon also
testified to Plaintiff’s physical capabilities. Because Plaintiff only disputes the ALJ’s findings in
regards to her mental impairments, Dr. Kendrick’s testimony is irrelevant here.
3

exhibited alert and responsive behavior. Trouble concentrating was not observed. Trouble
remembering was not observed.” (R. at 372.)
Dr. Dubey further found Plaintiff was inconsistent with the information she provided
during the interview. (Id.) He noted “[f]or example, her symptoms are inconsistent with the
mental health condition she reported, she reported mental health problems with no observable
symptoms, stated significant anxiety, leaving home or being around others, no problems
observed in evaluation, reported problems dealing with others but interacted appropriately
throughout the evaluation.” (Id.) He concluded that “she appeared to be magnifying reported
symptoms.” (Id.) In contrast to his observations, however, Dr. Dubey concluded that Plaintiff’s
“behavior during the evaluation situation was distractible. In a work setting, based on the
available information, she would not be able to maintain attention, concentration, persistence,
and pace to perform simple and multistep tasks.” (R. at 374.)
B.

Julie Brun
Department of Disability adjudicator Julie Brun contacted Plaintiff on June 30, 2011. (R.

at 285.) Plaintiff reported that she has bipolar disorder and anxiety but that she does not receive
treatment for either impairment. (Id.) Ms. Brun reported that it was extremely difficult to get
information from Plaintiff, and noted inconsistencies from Plaintiff’s “ranting” including her
claim that she is unable to perform household chores but that she “cleans the place so she doesn’t
live in filth but this takes her all day.” (Id.) She also stated that she does not go grocery
shopping but later reported that she “might go to the store once a month.” (Id.)
C.

Daniel Winkle, M.D.
Dr. Daniel Winkle examined Plaintiff on August 27, 2011, to perform an independent

consultative examination. He noted that Plaintiff “was extremely distractible, tangential and
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difficult to keep her on topic.” (R. at 376.) Plaintiff reported that she had previously received
care for her pain from Dr. Gatto Helping Hands, but that she did not intend to return to that
physician because Dr. Gatto would not provide her “with stronger pain pills.” (Id.) She also
reported that she has difficulty with bipolar disorder and panic attacks but “she had a very
difficult time expanding on any details of this.” (Id.) Dr. Winkle wrote that Plaintiff “refused
the big majority of the musculoskeletal exam including palpation, straight leg raise testing
Spurling’s maneuver, palpation of the soft tissue mass.” (R. at 378.) He diagnosed a possible
somatoform disorder based on her belief that her spinal cord was outside of her spinal canal, and
recommended a psychological examination. (Id.)
D.

Dr. Charles Paugh
On December 21, 2011, Dr. Paugh completed a mental health assessment. (R. at 407.)

He indicated that Plaintiff was “markedly limited” in the ability to work with others without
being distracted as well as in her ability to complete a normal workweek without interruptions
from psychologically based symptoms. (Id.) He marked that the symptoms would last between
nine and eleven months. (Id.)
E.

Cooperative Disability Investigations Unity Report
The Cooperative Disability Investigations Unit (“CDI”) opened an investigation on

October 20, 2011, “as a result of an allegation of fraud or similar fault” against Plaintiff by the
Ohio Disability Determination Service (“DDS”). (R. at 393.) DDS asked CDI to resolve five
areas of conflict existing between Plaintiff’s medical evidence and her statements regarding her
alleged limitations. For example, the detectives were tasked with describing Plaintiff’s “ability
and willingness to participate in the interview and to answer questions. Is she able to answer

5

questions with relevant responses? Is she able to stay on topic, or is she distracted and unable to
focus on the discussion?” (Id.)
Then, on November 16, 2011, two detectives went to Plaintiff’s home and discussed an
unrelated law enforcement matter with her in order to assess her behavior at a time when she
believed she was not being examined for disability benefits. (R. at 396.) The detectives noted
that Plaintiff was capable for answering all questions and that she asked questions of her own.
They noted that she seemed comfortable speaking with the detectives and exhibited no difficulty
with her recollection of dates and events from the past. They further reported that she did not
appear nervous, afraid, delusional, fearful, apprehensive, or confused. (Id.) Plaintiff stated that
she shops for groceries, goes for walks in her neighborhood, and uses public transportation. (Id.)
The report also noted that on September 13, 2011, Plaintiff filed a police report where she
alleged that an unknown male assaulted her while she was “partying” at a home not listed as her
residence. (R. at 396–97, 402.)
F.

Keith Adams
Disability claims adjudicator Keith Adams considered the evidence in Plaintiff’s case

record and concluded that Plaintiff committed similar fault in connection with her disability
claim, reasoning as follows:
There is reason to believe that the claimant knowingly provided incorrect
information regarding her daily activities. Evidence shows she is able to
communicate clearly and effectively with others. She is able to answer questions
and provide relevant personal history without difficulty. Evidence shows she
performs her own shopping and goes for walks in the area, in contrast to her
statements that she has panic attacks and runs away in unfamiliar situations. The
police report the claimant filed in 9/11 indicates she is able to go out and socialize
with others in unfamiliar settings.
(R. at 289.) He therefore determined that reports based on input from Plaintiff should be
disregarded. (Id.)
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IV.

ADMINISTRATIVE DECISION

On August 12, 2015, the ALJ issued his decision. (R. at 11–28.) At step one of the
sequential evaluation process,4 the ALJ found that Plaintiff had not engaged in substantially
gainful activity since May 23, 2011, which he referred to as Plaintiff’s application filing date.5
The ALJ found that Plaintiff had the severe impairments of degenerative disease of her cervical
and lumbar spine and bilateral carpal tunnel syndrome. (R. at 13.)
The ALJ determined that although the record documents mental impairments, including
mood disorder, schizophrenia, bipolar disorder, polysubstance abuse, mood disorder, etc.,
Plaintiff’s “presentation and subjective reports were substantially not credible and thus call into
question the diagnoses of medically determinable mental impairments.” (R. at 14.) In making
this determination, the ALJ agreed with the Ohio Division of Disability Determination’s
(“ODDD”) and found “similar fault” based on a Cooperative Disability Investigations Unit
(“CDI”) report, which documented inconsistencies with regard to Plaintiff’s alleged disability
4

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
5
Based on the record, it appears Plaintiff actually filed her application on June 7, 2011. (R. at
254.)
7

and functional limitations. (R. at 15.) The ALJ found that evidence in the CDI report as well as
“observations by other sources in the record” suggest Plaintiff had a “conscious decision to
deceive.” (R. at 16.)
The ALJ alternatively determined that Plaintiff’s mental impairments were “mild.” The
ALJ explained as follows:
Even if one were to assume medically determinable mental impairments, the
credible portion of the claimant’s statements, including activities of living,
indicate no more than “mild” limitation in the four broad functional areas . . .
activities of daily living, social functioning, concentration/persistence/pace, and
extended episodes of decompensation.
(R. at 14.) The ALJ then examined in-depth each of the four functional areas. He found that in
reviewing the record as a whole, Plaintiff’s reported daily activities, including cleaning, cooking,
using public transportation, shopping, talking on the phone with friends, taking care of her cat,
partying at another’s residence, reflect a finding of “mild difficulties in daily living.”
He also found that Plaintiff only had mild limitations in social functioning. He based this
determination in part on evidence reflecting that she lives with her boyfriend and other friends,
when observed in a new environment, dealing with new people, Plaintiff was reported to have
been frank and cooperative, and other evidence in the record repeatedly reflecting Plaintiff’s
social limitations were not as limited as she described. (R. at 16.)
In the third functional area, concentration, persistence, or pace, the ALJ again found that
Plaintiff only had mild limitations. (R. at 17.) He reviewed Dr. Dubey’s treatment notes
observing Plaintiff’s thought processes were coherent, tangential, and within normal limits. (Id.)
He also reviewed other evidence in the record consistent with Dr. Dubey’s observations, as well
as the CDI report in which “[s]he was noted to be capable of answering all questions and asking
questions of her own, exhibited no difficulty with recollection of dates, and her memory of
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events from the past seemed good.” (Id.) Finally, the ALJ found that Plaintiff never
experienced episodes of decompensation that were of an extended duration. (Id.)
He further found that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404,
Subpart P. Appendix 1. (R. at 18.) As step four of the sequential process, the ALJ set forth
Plaintiff’s RFC as follows:
The claimant has the residual functional capacity to lift and/or carry 20 pounds
occasionally and ten pounds frequently, sit for six hours in a workday, stand
and/or walk six hours total in a workday, frequently use her upper extremities,
and occasionally bend, crawl, squat, stoop, and kneel but never climb ladders or
work at high places or around dangerous machinery.
(R. at 18.) In reaching this determination, the ALJ gave Dr. Dubey’s opinion “little weight,”
finding that Dr. Dubey’s “suggested limitations are belied by his other observations and opinion
that the claimant appeared to magnify symptoms.” (R. at 24.) He similarly gave “little weight”
to the opinion of Dr. Paugh, who indicated moderate and marked mental work-related
limitations. He found Dr. Paugh’s opinion inconsistent with the “credible portion of activities of
daily living evidence” and that the opinion was not supported by objective medical evidence, as
well as “highly dependent” on Plaintiff’s reports of symptoms and limitations. (Id.)
Relying on the VE’s testimony, the ALJ concluded that Plaintiff can perform jobs
existing in the national and local economy. He therefore concluded that Plaintiff was not
disabled under the Social Security Act.
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
9

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“take into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “a decision
of the Commissioner will not be upheld where the [Social Security Administration] fails to
follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
VI.

ANALYSIS

Plaintiff argues that the ALJ’s finding of “similar fault” under SSR 00-2p is not
supported by a preponderance of the evidence. In support of this contention, she argues that the
ALJ relied on “cherry-picked” evidence to support his determination. She further argues that the

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ALJ did not satisfy his burden at step five of the sequential-evaluation process in determining
Plaintiff’s residual functional capacity because he failed to include mental health limitations.
A.

The ALJ’s finding of “similar fault” is supported by substantial evidence
SSR 00-02p,6 provides “that evidence shall be disregarded if there is reason to believe

that fraud or similar fault was involved in the providing of that evidence.” SSR 00-02p, 2000
WL 253695, at *1 (February 25, 2000). A “similar fault” finding is only allowed “if there is
reason to believe, based on a preponderance of the evidence, that the person committing the fault
knew that the evidence provided was false or incomplete.” (Id. at *2.) Similar fault is defined as
when “an incorrect or incomplete statement that is material to the determination is knowingly
made” or when “information that is material to the determination is knowingly concealed.” (Id.)
A statement is made “knowingly” if the person providing the statement knows it to be false or
incomplete.
“Although the ALJ must make his decision based on a preponderance of the evidence,
see SSR 00-2p, this Court may set aside an ALJ’s decision only where it is not supported by
substantial evidence or where the decision is based on legal error.” Hynek v. Astrue, Case No.
10-149-BLG-CSO, 2012 WL 460473, at *8 (D. Mont. Feb. 13, 2012) (upholding the ALJ’s
similar fault finding where the finding was based in-part on an investigation similar to the CDI
report) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).
As detailed above, in the instant case, the ALJ found “similar fault” based on the CDI
report and observations in the record he determined reflected Plaintiff’s “conscious effort to
deceive.” (R. at 14–18.) Plaintiff argues that while the similar fault determination “might have

6

SSR 00-2p was in effect at the date of the ALJ’s most recent decision. The ruling has since
been rescinded and replaced with SSR 16-2p.
11

been supported by a preponderance of the evidence available in April 2012,” Plaintiff’s treatment
records since 2012 have rendered the similar fault finding “obsolete.” The Court disagrees.
The CDI report reflects vast discrepancies between Plaintiff’s reports and presentation
during examinations and her behavior when she was under the impression that any observations
would not affect her disability application. (R . at 391–405.)

For example, Plaintiff reported

that she has panic attacks when in a situation in which she does not have control, and exhibited
behavior reflecting an inability to focus such as “talking non-stop” as well as “speaking loudly,
rambling, [and] not making a lot of sense,” when she presented for examinations related to her
disability application. (R. at 620, 500.) However, when investigators visited Plaintiff at her
home under the pretense of discussing an unrelated law enforcement matter, Plaintiff exhibited
none of the reported behaviors. (R. at 396.) Instead, inspectors reported that Plaintiff “did not
appear anxious or depressed” that she spoke with a “slightly slurred speech” but maintained
appropriate eye contact. (Id.) Plaintiff, moreover, “seemed comfortable talking with the
detective,” and was found to be “capable of answering all questions, and she asked questions of
her own.” (Id.) The ALJ, moreover, observed that Plaintiff was able to closely follow the
hearing proceeding and “fully respond to questions in an appropriate manner.” (R. at 27.) The
ALJ therefore sufficiently supported his “similar fault” determination.
Moreover, a review of Plaintiff’s treatment records since the CDI report reveals
Plaintiff’s noncompliance with treatment. Dr. Paugh prescribed her antidepressants, but she
reported in her May 2012 disability report that she was not taking the prescribed medications.
(R. at 317.) Further, Plaintiff’s medical records reflect that prescribed medications, when she is
compliant, help improve any existing impairments. (R. at 563.) Plaintiff’s treatment record also
reflects her repeated missed appointments. (R. at 652, 653.) The ALJ’s “similar fault”
12

determination is supported by substantial evidence. Hensley v. Comm’r of Soc. Sec., Case No.
1:15-cv-711, 2016 U.S. Dist. LEXIS 185208, at *35 n.17 (S.D. Ohio Nov. 23, 2016) (“An
individual who would otherwise be found to be under a disability, but who fails without
justifiable cause to follow treatment prescribed by a treating source which the [SSA] determines
can be expected to restore the individual’s ability to work, cannot by virtue of such ‘failure’ be
found to be under disability.”) (quoting SSR 82-59, 1982 WL 31384 (Jan. 1 1982)).
In any event, Plaintiff has failed to adduce any contrary evidence to rebut the ALJ’s
reasonable analysis which led him to conclude that she had no debilitating mental limitations.
Plaintiff further alleges that the ALJ “cherry-picked” the evidence to support his findings. (SOE
at 19.) This claim disregards the ALJ’s thorough review of Plaintiff’s alleged impairments. (R.
at 27.) The ALJ is not required to cite to every piece of evidence in the record in his written
decision as Plaintiff claims. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir.
2006) (“an ALJ can consider all the evidence without directly addressing in his written decision
every piece of evidence submitted by a party. Nor must an ALJ make explicit credibility
findings as to each bit of conflicting testimony, so long as his factual findings as a whole show
that he implicitly resolved such conflicts.”). The Court finds that the ALJ’s thorough review of
Plaintiff’s medical records, the CDI report, and Plaintiff’s daily activities supported his
determination that Plaintiff did not suffer any severe mental impairment. Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997) (“[I]f
substantial evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there
is substantial evidence in the record that would have supported an opposite conclusion.’”)).

13

B.

The ALJ’s hypothetical at step five incorporated Plaintiff’s credible limitations
Plaintiff finally argues that the ALJ erred at step five of the sequential process because

the hypothetical question to the vocational expert did not include any mental health conditions.
The ALJ, however, did not err because he found Plaintiff’s mental impairments to be mild, and
therefore unnecessary of incorporation. As discussed in detail above, the Court agrees. The ALJ
reasonably found Plaintiff’s account of her limitations unreliable under the similar fault doctrine
such that she fails to rebut or show that she could not do the unskilled work identified by the VE.
Stanley v. Sec’y of H.H.S., 39 F.3d 115, 118 (6th Cir. 1994) (“the ALJ is not obliged to
incorporate unsubstantiated complaints into his hypotheticals.”); see also Casey v. Sec’y of
H.H.S., 987 F.2d 1230, 1235 (6th Cir. 1993) (ALJ required to incorporate only those limitations
accepted as credible in hypothetical to VE.). Accordingly, the ALJ’s determination was
supported by substantial evidence.
I.

CONCLUSION

In sum, from a review of the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s decision denying benefits. Accordingly, the Court OVERRULES
Plaintiff’s Statement of Errors and AFFIRMS the Commissioner of Social Security’s decision.
The Clerk is DIRECTED to enter judgment in favor of Defendant and to terminate this case.
IT IS SO ORDERED.

s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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