Jeffrey v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATION re 4 Complaint filed by David L. Jeffrey. It is RECOMMENDED that Plaintiff's sole contention of error be SUSTAINED and that the Court REVERSE the Commissioner of Social Security's non-disabi lity finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of § 405(g) for further consideration consistent with this Report and Recommendation. Objections to R&R due by 12/11/2017. Signed by Magistrate Judge Chelsey M. Vascura on 11/27/2017. (kpt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID L. JEFFREY,
Plaintiff,
Civil Action 2:16-cv-1122
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, David L. Jeffery, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
his application for Supplemental Security Income. This matter is before the United States
Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.
15), the Commissioner’s Memorandum in Opposition (ECF No. 18), Plaintiff’s Reply (ECF No.
19), and the administrative record (ECF No. 14). For the reasons that follow, it is
RECOMMENDED that the Court REVERSE the Commissioner of Social Security’s nondisability finding and REMAND this case to the Commissioner and the ALJ under Sentence
Four of § 405(g) for further consideration consistent with this Report and Recommendation.

I.

BACKGROUND

Plaintiff filed his application for Supplemental Security Income on August 8, 2013,
alleging that he has been disabled since June 30, 2004, due to several impairments, including
epilepsy and bi-polar/depressive disorder. (ECF No. 14-6, PAGEID # 253). Plaintiff’s
application was denied initially and upon reconsideration. He timely filed a request for an
administrative hearing. The hearing was held before Administrative Law Judge Thuy-Anh T.
Nguyen (“ALJ”) on December 15, 2015, at which Plaintiff, represented by counsel, appeared by
videoconference and testified. William J. Kiger, a vocational expert (“VE”), also appeared and
testified at the hearing. On March 2, 2016, the ALJ issued a decision finding that Plaintiff was
not disabled within the meaning of the Social Security Act. (ECF No. 14-2, PAGEID # 81). On
September 28, 2016, the Appeals Council denied Plaintiff’s request for review and adopted the
ALJ’s decision as the Commissioner’s final decision. Plaintiff then timely commenced this
action.
In his Statement of Errors, Plaintiff raises one argument: the ALJ’s determination of the
Plaintiff’s mental residual functional capacity (“RFC”) was not supported by substantial
evidence. More specifically, Plaintiff points out that the ALJ’s mental RFC tracks the stateagency reviewing psychological consultants’ opinions even though the ALJ explicitly found that
the record evidence showed him to be more limited. Plaintiff also points out that despite
affording the opinion of consultative psychological examiner James N. Spindler partial weight,
the ALJ failed to include any of the limitations Mr. Spindler opined.
In her memorandum in opposition, the Commissioner counters that the record as a whole
provides substantial evidence supporting the ALJ’s mental RFC determination. The
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Commissioner points out that the ALJ included all of the limitations that the state-agency
psychological consultants opined and argues that the ALJ’s rejection of the limitations Dr.
Spindler opined is supported by the ALJ’s discussion of the record evidence. In particular, the
Commissioner emphasizes the ALJ’s discussion of Plaintiff’s treatment history and activities of
daily living.
II.

RELEVANT RECORD EVIDENCE1

Psychologist James N. Spindler examined Plaintiff on October 29, 2013. After setting
out his clinical observations and findings, Mr. Spindler provided the following assessments of
Plaintiff’s abilities and limitations:
He seems likely to have a problem understanding, remembering
and carrying out instructions in many job settings. However he
seems capable of managing a variety of unskilled, labor-type jobs.
***
He seems unlikely to have the ability to sustain a working pace and
to maintain a level of attention and concentration that would be
required for most job settings.
***
Claimant reports that when he was employed he received good job
performance ratings, but often had problems getting along with
others. It seems unlikely that [his] behavior would be any different
if he were employed today.
***
Based on clinical observations and what the claimant has told the
examiner, David does not appear to be handling the current

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This discussion is limited to evidence bearing on the sole contention of error Plaintiff
raises in his Statement of Errors. (ECF No. 15.)
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stressors in his life very effectively. It seems likely that he will not
respond appropriately to a competitive work setting.
(ECF No. 14-7, PAGEID ## 395-396).
The record also includes the assessments of State agency medical and psychological
consultants, who did not examine Plaintiff but evaluated his abilities and limitations on the basis
of medical records and the reports of examining health care professionals. Dr. David DeMuth
concluded that Plaintiff was moderately limited in his ability to understand, remember, and carry
out detailed instructions; his ability to maintain attention and concentration for extended periods;
his ability to work in coordination with or in proximity to others without being distracted by
them; his ability to work a normal day or week without interruptions from psychologicallycaused symptoms; his ability to perform at a consistent pace without an unreasonable number
and length of rest periods; his ability to interact appropriately with the public; his ability to
accept instructions and to respond appropriately to criticism from supervisors; his ability to get
along with coworkers or peers without distracting them or exhibiting behavioral extremes; his
ability to respond appropriately to changes in the work setting; and his ability to make set
realistic goals or make plans independently of others. (ECF No. 14-3, PAGEID ##135-136). Dr.
Cynthia Waggoner’s conclusions were similar. (ECF No. 14-3, PAGEID ##151-152). Both Drs.
DeMuth and Waggoner opined that Plaintiff retained the mental RFC to complete simple, one- to
three-step repetitive work in a static environment with limited productions standards; and
superficial social interaction with the public, co-workers, and supervisors where he would work
best in small groups or alone. (Id. at PAGEID ##135-136; 150-15.)

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The record also contains statements from a number of non-examining health care
providers. None of those statements is intended to be an assessment of Plaintiff’s abilities,
however. In fact, when Plaintiff’s representative sent them to the ALJ after the December 2015
hearing, he explicitly stated that the purpose of the statements was to assist the ALJ in
interpreting Mr. Spindler’s assessment. (ECF No. 14-7, PAGEID # 577). Each of the statements
attached to the letter includes a definition of the word “moderate” as it qualifies the word
“impairment.” (ECF No. 14-7, PAGEID ## 579-602). None of the statements includes an
assessment of Plaintiff’s abilities.
In addition to the findings of the examining and non-examining health care professionals,
the record includes Plaintiff’s testimony at the December 2015 hearing, his September 2013
Function Report, and medical records from July 2014 and July 2015. At the hearing, Plaintiff
testified that he sometimes has thoughts of hurting other people, including in work settings; that
he yells at relatives and friends without realizing that he is yelling; that he lashes out when he is
angry; that three to four times in a typical week he screams, voices his opinions loudly, and
stomps because he does not like what someone else is saying; and that he can be around only one
or two people at a time comfortably. (ECF No. 14-2, PAGEID ## 103-105, 109, 115). In the
Function Report, Plaintiff represented that he rarely engages in social activities and only with his
girlfriend. (ECF No. 14-6, PAGEID # 266). He further represented that he has problems getting
along with people, that he likes to be by himself, that he does not get along with authority
figures, that he does not handle stress well, and that he gets mad easily. (ECF No. 14-6,
PAGEID ## 267-268). During a diagnostic session at a psychological counseling center in July
2015, plaintiff reported “[n]o income, anxiety, and loss of control.” (ECF No. 14-7, PAGEID
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#529). During that visit, Plaintiff was diagnosed with antisocial personality disorder. (ECF No.
14-7, PAGEID # 541).
During the December 2015 administrative hearing, the ALJ and Plaintiff’s attorney posed
a series of hypothetical questions to the VE. All of the questions included the same physical
limitations the ALJ ultimately assessed for Plaintiff, but the nonexertional limitations varied.
When the hypothetical restrictions included “occasional and superficial [interaction] with the
public . . . and low-stress jobs, defined as those requiring only occasional decision-making,” the
VE opined that a hypothetical individual with Plaintiff’s background could perform 135,000 jobs
that exist in the national economy. (ECF No. 14-2, PAGE # 119). When the additional
restriction of being able to “work only with two other coworkers or supervisors in the work
setting” was added, the VE reduced the number of available jobs to 40,000. (ECF No. 14-2,
PAGE # 119). An additional restriction that “three times a week the individual would not be
able to relate or interact with coworkers, supervisors, or the public” eliminated all available jobs.
(ECF No. 14-2, PAGE # 120). When the limitation of being “off task 20 percent of a given work
day or work week,” was added to account for an inability to tolerate stress, the VE again testified
that such an individual could not sustain competitive employment. (ECF No. 14-2, PAGE #
121). The VE elaborated that an individual who was off task ten percent of the work day or
work week could find employment but that a percentage beyond fifteen would be the cutoff “for
sustaining a competitive job.” (ECF No. 14-2, PAGE # 122).
III.

THE ADMINISTRATIVE DECISION

On March 2, 2016, the ALJ issued the decision denying Plaintiff benefits. The ALJ
concluded that Plaintiff had the severe impairments of epilepsy/seizures, chronic obstructive
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pulmonary disease, bipolar/depressive disorder, anxiety disorder, and history of alcohol
dependence/ polysubstance abuse disorder. The ALJ next concluded that Plaintiff’s impairments
do not meet or medically equal any of the listed impairments. The ALJ then assessed the
following mental RFC:
[Plaintiff] is capable of performing one-to three-step repetitive work that does not
require fast-paced production standards and occurs in a static environment. He
can relate on an occasional and superficial level to the public, coworkers, and
supervisors. [Plaintiff] is capable of simple and repetitive work that requires
limited productions standards, superficial social interaction. He is capable of
performing low stress jobs defined as having occasional decision-making.
(Id. at PAGEID# 74.)
In reaching this mental RFC, the ALJ rejected the opinions of Drs. Roach, Coblentz,
Wolfgang, Yee, and Dubbeling as too extreme, unsupported, or too old to be probative. He
accorded the opinion of consultative examining psychologist Mr. Spindler “partial weight,”
twice emphasizing that Mr. Spindler opined that Plaintiff “appeared to be handling the current
stressors in his life ‘very effectively.’” (Id. at PAGEID# 77-78.) Finally, the ALJ accorded the
opinions of the state-agency psychological consultants “some weight,” explaining that “the social
limitations are not supported by mental status examinations” and that Plaintiff “is more limited
than determined by the State agency consultants at the time of their review.” (Id. at PAGEID#
79.) Notwithstanding the ALJ’s finding that Plaintiff was more limited than the state-agency
psychological consultants opined, he adopted the mental RFC they assessed and did not include
additional limitations. As additional support for the mental RFC assessed, the ALJ cited
Plaintiff’s treatment history and activities of daily living.

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Relying on the VE’s testimony, the ALJ concluded that Plaintiff was not disabled as
contemplated under the Social Security Act.
IV.

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)
(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)) cert. denied sub nom. Paper,
Allied-Indus., Chem.& Energy Workers Int’l Union v. TNS, Inc., 537 U.S. 1106 (2003).
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 (6th Cir. 2009) (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

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V.

ANALYSIS

As set forth above, for his sole contention of error, Plaintiff challenges the ALJ’s mental
RFC determination, asserting that it is not supported by substantial evidence. The undersigned
agrees.
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010).
An ALJ is required to explain how the evidence supports the limitations that he or she set
forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In
assessing RFC, the adjudicator must discuss the individual’s ability to perform
sustained work activities in an ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted).
Here, the ALJ’s explanation of how he arrived at Plaintiff’s RFC determination creates
confusion. This confusion, together with the errors the ALJ commits in his consideration of
important record evidence, deprives his mental RFC formulation and ultimate nondisability

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finding of substantial evidence. To begin, as Plaintiff points out, despite according the opinions
of the state-agency psychological consultants only “some weight” and concluding that Plaintiff
“is more limited than determined by the State agency consultants,” (ECF No. 14-2 at PAGEID#
79 (emphasis added)), the ALJ adopted the mental RFC the consultants opined and rejected any
more restrictive nonexertional limitations opined by other medical sources. And although the
ALJ accorded Mr. Spindler’s opinion “partial weight,” it is unclear what, if any, limitations that
Mr. Spindler opined that the ALJ credited. Perhaps most troubling, however, is that the ALJ
appears to heavily rely upon his misstatement of Mr. Spindler’s opinion regarding Plaintiff’s
ability to handle stress. Twice within his decision, the ALJ stated that Mr. Spindler opined that
Plaintiff “appeared to be handling the current stressors in his life ‘very effectively.’” (Id. at
PAGEID# 77-78 (emphasis added).) But this is not what Mr. Spindler said. To the contrary, Mr.
Spinder stated that Plaintiff did “not appear to be handling the current stressors in his life very
effectively.” (ECF No. 14-7, PAGEID# 396 (emphasis added).) Finally, the ALJ also
mischaracterizes a July 2015 treatment record, stating that the record reflected that Plaintiff “did
not have anxiety or loss of control.” (ECF No. 14-2 at PAGEID# 77.) But contrary to the ALJ’s
characterization, Plaintiff did not tell a counselor in July 2015 that he had no anxiety or loss of
control. Rather, he reported that he had “[n]o income, anxiety, and loss of control,” indicating
that he did have anxiety and loss of control. (ECF No. 14-7, PAGEID #529).
The undersigned is unable to discern how these errors may have influenced the ALJ’s
mental RFC calculation or other aspects of his opinion, such as his credibility determination. As
noted above, in arriving at Plaintiff’s mental RFC, the ALJ rejected the opinions of Drs. Roach,
Coblentz, Wolfgang, Yee, and Dubbeling and declined to accord controlling weight to any
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opinion in the record. The ALJ’s mental RFC assessment belies his conclusion that Plaintiff was
more limited than the state-agency consultant’s opined. The only examiner’s opinion to whom
the ALJ accorded weight was Mr. Spindler’s, and the ALJ incorrectly believed that Mr. Spindler
found that Plaintiff was handling stressors “very effectively,” when Mr. Spinder actually found
exactly the opposite. Significantly, the VE testified that additional restrictions on Plaintiff’s
ability to tolerate stress in the form of being off task more than 15% of the time would be work
preclusive. Cf. Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011) (“In order for a VE’s testimony
to constitute substantial evidence that a significant number of jobs exists, the questions must
accurately portray a claimant’s physical and mental impairments.” (internal quotation omitted)).
The Court is therefore convinced that the ALJ’s errors in characterizing the record
evidence may not have been harmless and that this matter should be remanded for further
consideration. See Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499-500 (6th Cir. 2014) (errors
in the ALJ’s characterization of evidence on which non-disability finding is based warrant
remand).
For that reason, it is RECOMMENDED that Plaintiff’s sole contention of error be
SUSTAINED.

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VI.

DISPOSITION

Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to
the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g).
Accordingly, it is RECOMMENDED that the Court REVERSE the Commissioner of Social
Security’s non-disability finding and REMAND this case to the Commissioner and the ALJ
under Sentence Four of § 405(g) for further consideration consistent with this Report and
Recommendation.
VII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, he
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
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appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“a general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal”)(citation
omitted).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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