Hague v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION re 3 Complaint filed by Tamara S. Hague. 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. Objections to R&R due by 3/13/2019. Signed by Magistrate Judge Chelsey M. Vascura on 2/27/2019. (daf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TAMARA S. HAGUE,
Plaintiff,
Civil Action 2:18-cv-419
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Tamara S. Hague (“Plaintiff”), 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 disability insurance benefits and 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. 8), the Commissioner’s Memorandum in Opposition (ECF No.
16), Plaintiff’s Reply (ECF No. 9), and the administrative record (ECF No. 7). For the reasons
that follow, the undersigned RECOMMENDEDS 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.
I.

BACKGROUND

Plaintiff filed her application for disability insurance benefits and supplemental security
income on May 11, 2015, alleging disability since May 20, 2013. (R. at 187, 189.) Plaintiff’s

application was denied initially and upon reconsideration. (R. at 70-71, 96-97.) Plaintiff sought
a de novo hearing before an administrative law judge. Administrative Law Judge Gregory
Moldafsky (the “ALJ”) held a hearing on May 11, 2017, at which Plaintiff, represented by
counsel, appeared and testified. (R. at 58-108.) On July 26, 2017, the ALJ issued a decision
finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 1526.) On March 17, 2018, the Appeals Council denied Plaintiff’s request for review and affirmed
the ALJ’s decision. (R. at 1-6.) Plaintiff timely filed this action for review. (ECF No. 1.)
Plaintiff advances two errors in her Statement of Errors. Specifically, Plaintiff asserts
that remand is required because (1) the ALJ failed to consider the opinions of the state agency
psychologists; and (2) the ALJ’s mental residual functional capacity is not supported by
substantial evidence. The undersigned finds the first contention of error to be well taken and
concludes that consideration of the second contention of error is unnecessary. The undersigned
therefore limits her discussion below to Plaintiff’s first contention of error.
II.
A.

RELEVANT RECORD EVIDENCE

State Agency Psychologists
1. State Agency Evaluating Psychologist
Dr. Steven J. Meyer, Ph.D., evaluated Plaintiff on January 21, 2015, at the request of the

Ohio Division of Disability Determination. (R. at 623-28.) Plaintiff reported that she suffers
from bipolar symptoms and depression. She indicated that she lives with her daughter, her
daughter’s boyfriend, and her three grandchildren. She reported that she recently ended a
relationship with a boyfriend.
Plaintiff stated that she rises at 5:00 or 6:00 in the morning and then “sits around” most of

2

the day. (R. at 625.) She indicated she does not eat or sleep well, she does not have friends, and
she does not attend church or perform cleaning, cooking, or shopping. She added that she texts
and talks on the phone with her children and that she talks with her sister over the phone three
times per week.
Dr. Meyer observed Plaintiff to be adequately groomed, though he noted “[h]er hands
were dirty.” (R. at 625.) Plaintiff’s affect was constricted, and her mood was moderately
dysphoric, anxious, and irritable. He indicated there “was evidence of mild psychomotor
agitation,” and stated that Plaintiff reported she feels hopeless, guilty, and worthless. (R. at 625.)
Plaintiff also reported manic symptoms of irritable mood, racing thoughts, and pressured speech
that occur for three days, 1-2 times per month. She stated that she feels anxious when “riding in
a car [or] going into a store.” (Id.) She reported panic attacks that occur once per week that
include shortness of breath, dizziness, lightheadedness, nausea, and hot flashes. Plaintiff denied
experiencing auditory or visual hallucinations. She was sufficiently oriented and had no
difficulty understanding simple or moderately complex instructions. Dr. Meyer further noted
that Plaintiff’s short-term memory was impaired and that her long-term memory was below
average.
Dr. Meyer assigned diagnoses of panic disorder without agoraphobia and bipolar
affective disorder, mixed. (R. at 626.) In his functional assessment, Dr. Meyer opined that
Plaintiff has the cognitive capacity to understand, remember, and carryout simple and moderately
complex routine instructions and tasks. He further opined that she would be expected to perform
adequately in a workplace setting without strict production requirements and with additional
assistance available as needed at times of performing new tasks and at times of change in

3

routine. In addition, Dr. Meyer opined that Plaintiff should be limited to a nonsocial/solitary
position with at most intermittent contact with coworkers and supervisors and to a low-stress
work setting. (R. at 627.)
2. State Agency Reviewing Psychologists
On June 13, 2015, state agency reviewing psychologist Dr. Deryck Richardson, Ph.D.,
reviewed Plaintiff’s records and concluded that Plaintiff was moderately limited in various
categories of memory and concentration and persistence, as well as social interaction and
adaptation. More specifically, Dr. Richardson opined that Plaintiff can perform simple routine
tasks, carry out short/simple instructions, make simple decisions, and adequately adhere to a
setting without high production standards or a requirement to work rapidly. (R. at 115-16.) In
addition, Dr. Richardson opined that Plaintiff can interact with familiar groups of people and,
although she is limited in her ability to respond appropriately to harsh criticism from supervisors,
she can relate adequately on a superficial basis in an environment that entails infrequent public
contact and requires no over-the-shoulder supervision. (R. at 116.) On August 17, 2015, State
Agency reviewing psychologist Dr. David Dietz, Ph.D., reviewed Plaintiff’s records and adopted
Dr. Richardson’s findings.
B.

The ALJ’s Decision
On July 26, 2017, the ALJ issued his decision. (R. at 15-26.) At step one of the

sequential evaluation process,1 the ALJ found that Plaintiff has not engaged in substantial gainful

1. 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:
4

activity since May 20, 2013. (R. at 17.) The ALJ found that Plaintiff has the severe impairments
of affective disorder (bipolar and depression) and anxiety disorder. (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 15.) At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: she is able to
perform simple (as defined in the Dictionary of Occupations Titles (DOT) as
Specific Vocational Preparation (SVP) levels 1 and 2), routine, repetitive tasks, in
a work environment that is not fast paced (i.e., work that is goal based or measured
by end result, no pace work); limited to incidental interaction with the public and
occasional interaction with coworkers and supervisors and no over the shoulder
supervision; limited to jobs where changes in job processes or setting are no more
than occasional to few, and where any changes are explained in advance and limited
to jobs where the individual’s job responsibilities are accomplished without the
need for close teamwork or tandem work.
(R. at 20.) Relying on testimony from a vocational expert, the ALJ found that Plaintiff is unable

1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. 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?
4. Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
5. 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

to perform any past relevant work, but that there exist jobs in significant numbers in the national
economy that Plaintiff is able to perform. (R. at 24, 25.) The ALJ therefore concluded that
Plaintiff was not disabled under Section 1614(a)(3)(A) of the Social Security Act. (R. at 26.)
Although the ALJ referenced Dr. Meyer’s opinion in assessing whether Plaintiff meets or
medically equals a listed impairment, he did not weigh or otherwise mention that opinion again,
including when assessing Plaintiff’s RFC. The ALJ failed to mention the opinions of Drs.
Richardson and Dietz in his opinion.
III.

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)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is

6

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 SSA 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)).
IV.

ANALYSIS

Plaintiff contends that remand is proper because (1) the ALJ failed to appropriately weigh
and consider the opinions of the state agency psychologists; and (2) the ALJ’s mental RFC is not
supported by substantial evidence. The undersigned finds that Plaintiff’s first contention of error
has merit and necessitates remand. The undersigned therefore declines to address Plaintiff’s
second contention of error.
The ALJ must consider all medical opinions that he or she receives in evaluating a
claimant’s case. 20 C.F.R. § 416.927(c) (“Regardless of its source, we will evaluate every
medical opinion we receive.”). The applicable regulations define medical opinions as
“statements from acceptable medical sources that reflect judgments about the nature and severity
of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1); see
also SSR 96–8p, 1996 WL 374184, *7 (July 2, 1996) (“The RFC assessment must always
consider and address medical source opinions.”). Like other medical source opinions, the ALJ

7

must consider state agency medical opinions. See 20 C.F.R. § 416.913a(b)(1) (“Administrative
law judges are not required to adopt any prior administrative medical findings, but they must
consider this evidence according to §§ 416.920b, 416.920c, and 416.927, as appropriate, because
our Federal or State agency medical or psychological consultants are highly qualified and experts
in Social Security disability evaluation.”); SSR 96-6p, 1996 WL 374180, *2 (July 2, 1996)
(administrative law judges are required to consider state agency medical “findings of fact about
the nature and severity of an individual’s impairment(s) as opinions of nonexamining physicians
and psychologists. Administrative law judges and Appeals Council are not bound by findings
made by State agency . . . but they may not ignore these opinions and must explain the weight
given to the opinions in their decisions.”) (emphasis added).
Regardless of the source of a medical opinion, in weighing the opinion, the ALJ must
apply the factors set forth in 20 C.F.R. § 416.927(c), including the examining and treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the source. “In appropriate circumstances, opinions from State agency
medical and psychological consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining sources.” SSR 96-6p, 1996
WL 374180, *3; see also Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016) (stateagency medical consultants are “highly qualified physicians and psychologists who are experts in
the evaluation of the medical issues in disability claims under the [Social Security] Act;” thus, in
some cases, “an ALJ may assign greater weight to a state agency consultant’s opinion than to
that of a treating . . . source.” (first alteration in original) (internal quotation marks omitted));
Hoskins v. Comm’r of Soc. Sec., 106 F. App’x 412, 415 (6th Cir. 2004) (“State agency medical

8

consultants are considered experts and their opinions may be entitled to greater weight if their
opinions are supported by the evidence.”).
Here, the ALJ failed to weigh or otherwise explicitly consider the opinions of the state
agency reviewing psychologists, Drs. Richardson and Dietz. As for state agency evaluating
psychologist, Dr. Meyer, the ALJ referenced his opinion in determining Plaintiff does not meet
or medically equal a listed impairment (R. at 18), but he failed to otherwise consider or weigh
the opinion either expressly or implicitly. The Commissioner does not dispute that the ALJ erred
in failing to weigh or otherwise consider the opinions, but insists the error was harmless. The
undersigned disagrees.
The Commissioner correctly points out that the failure to weigh a medical source opinion
amounts to nothing more than harmless error where the RFC assessed by the ALJ accommodates
the restrictions set forth in the opinions. Cf. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547
(6th Cir. 2004) (stating that violations of the procedural rules within the treating physician
context constitutes harmless error if the ALJ’s decision “makes findings consistent with the
opinion”). The Sixth Circuit has held that where an ALJ’s opinion satisfies the goal of § 416.927
and is otherwise supported by substantial evidence, the failure to explicitly provide the weight
assigned is harmless. See, e.g., Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir.
2005) (harmless error where the ALJ failed to mention or weigh the report of consultative
neurologist who only evaluated plaintiff once and was not a treating source); Dykes v. Barnhart,
112 F. App’x 463, 467–69 (6th Cir. 2004) (failure to discuss or weigh opinion of consultative
examiner was harmless error); cf. Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir.
2010) (explaining that the treating physician rule “is not a procrustean bed, requiring an arbitrary

9

conformity at all times. If the ALJ’s opinion permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating physician’s opinion, strict
compliance with the rule may sometimes be excused.”).
Here, however, the RFC assessed by the ALJ does not account for the restrictions opined
by the state agency reviewing psychologists, Drs. Richardson and Dietz. Both Drs. Richardson
and Dietz opined that Plaintiff experiences the following limitations in social interaction:
Clmt can interact w/ familiar groups of people but her symptoms place restrictions
upon her ability to interact with others in a work setting. Clmt’s symptoms limit
her from responding appropriately to harsh criticism from supervisors. However,
she can relate adequately on a superficial basis in an environment that entails
infrequent public contact and requires little over the shoulder supervision.
(R. at 80.)
Although the RFC assessed by the ALJ accommodates various of these restrictions, it
fails to limit Plaintiff to superficial interaction with others. The Commissioner maintains that the
RFC accounts for this restriction by limiting Plaintiff to occasional interaction with co-workers
and supervisors. See Op. at 11, ECF No. 16 (stating that “[i]n keeping with the restrictions, the
ALJ made a RFC restriction that limited Plaintiff to only incidental interaction with the public,
and only occasional interaction with co-workers and supervisors.”). The terms “occasional” and
“superficial,” however, are not interchangeable. See Hurley v. Berryhill, No. 1:17-CV-421-TLS,
2018 WL 4214523, at *4 (N.D. Ind. Sept. 5, 2018) (“‘Occasional contact’ goes to the quantity of
time spent with [ ] individuals, whereas ‘superficial contact’ goes to the quality of the
interactions.”) (citations omitted). Given the ALJ’s failure to weigh the opinions or otherwise
explain his reasoning for excluding these restrictions, remand is necessary. See, e.g., Barker v.
Astrue, No. 5:09 CV 1171, 2010 WL 2710520, at *5–6 (N.D. Ohio July 7, 2010) (finding that the

10

ALJ erred by failing include in plaintiff’s “RFC the prior ALJ’s findings, as adopted by the state
agency physicians, that Plaintiff have no interaction with the public and only superficial
interaction with co-workers and supervisors” where the ALJ only “limited Plaintiff to no more
than occasional interaction with the public (as opposed to no interaction with the public, as in
ALJ Hafer’s assessment), and he made no mention of whether and to what extent Plaintiff can
interact with co-workers and supervisors”); Hurley, 2018 WL 4214523, at *4 (explaining that
“occasional” and “superficial” are not interchangeable terms and finding that the ALJ erred in
making no attempt to explain the basis of his decision to limit plaintiff to occasional rather than
superficial interactions) (citing Gidley v. Colvin, No. 2:12-CV-374, 2013 WL 6909170, at *12
(N.D. Ind. Dec. 30, 2013)); Cote v. Colvin, No. 16-CV-57-SLC, 2017 WL 448617, at *7 (W.D.
Wis. Feb. 2, 2017) (“The ALJ did not explain his reasons for only limiting the quantity and not
the quality or duration of plaintiff’s social interaction, even though several of the physicians
whom he credited made clear that plaintiff’s difficulties related to the quality of the
interaction.”).
The ALJ’s inclusion of “no over the shoulder supervision,” in the RFC, though consistent
with Drs. Richardson’s and Dietz’s opinions, likewise fails to account for their opinion that
Plaintiff is limited to superficial interaction. Rather, administrative law judges generally use the
phrase “no over the shoulder supervision” to mean only occasional supervision, which again
goes to the frequency of supervision. See, e.g., Rasnake v. Comm’r of Soc. Sec., No. 3:12-cv-36,
2013 WL 80361, at *1 (S.D. Ohio Jan. 7, 2013) (quoting ALJ opinion that limited the plaintiff to
“only occasional supervision (defined as no ‘over the shoulder’ supervision)”) (emphasis added);
Vance v. Comm’r of Soc. Sec., No. 3:11-cv-172, 2012 WL 1931863, at *7 (S.D. Ohio May 29,

11

2012) (same); see also Ciciliano v. Berryhill, No. 3:16-cv-510, 2018 WL 1531495, at *6 (S.D.
Ohio Mar. 29, 2018) (quoting ALJ opinion that limited Plaintiff to workplaces without “close
(i.e. ‘over-the-shoulder’) supervision”) (emphasis added); Martin v. Comm’r of SSA, No. 1:12cv-0766, 2013 WL 1947176, at *6 (N.D. Ohio Apr. 12, 2013) (ALJ opinion equates a lack of
“over the shoulder supervision” with “more remote supervision”).
To be clear, the ALJ’s RFC is not required to mirror or parrot medical opinions verbatim.
Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009). Here, however, the ALJ’s
failure to explicitly consider the state agency opinions and to accommodate corresponding
restrictions in the RFC prevents this Court from conducting meaningful review to determine
whether substantial evidence supports his decision. See Reynolds v. Comm’r of Soc. Sec., 424 F.
App’x 411, 414 (6th Cir. 2011) (noting that an ALJ’s decision “must include a discussion of
‘findings and conclusions, and the reasons or basis therefor, on all the material issues of fact,
law, or discretion presented on the record.’” (quoting 5 U.S.C. § 557(c)(3)(A))); Allen v. Astrue,
No. 5:11CV1095, 2012 WL 1142480, at *8 (N.D. Ohio Apr. 4, 2012) (remanding where “the
ALJ failed to properly articulate the RFC calculation,” explaining that the Court was “unable to
trace the path of the ALJ’s reasoning”); Commodore v. Astrue, No. 10-295, 2011 WL 4856162,
at *4, 6 (E.D. Ky. Oct. 13, 2011) (remanding action “with instructions to provide a more
thorough written analysis,” where the ALJ failed to articulate the reasons for his RFC findings
such that the Court could not “conduct a meaningful review of whether substantial evidence
supports the ALJ’s decision”); Cote, 2017 WL 448617, at *7 (requiring the ALJ to “build a
logical bridge between the evidence and any social functioning limitations that he chooses to
include in the residual functional capacity assessment”).

12

In sum, the undersigned finds that reversal is warranted because the ALJ’s failure to
weigh or otherwise consider the state agency opinions was not harmless error because the RFC
he assessed fails to accommodate the limitations set forth in those opinions. This finding
obviates the need to analyze and resolve Plaintiff’s remaining contention of error. Nevertheless,
on remand, the ALJ may consider Plaintiff’s remaining assignment of error if appropriate.
V.

CONCLUSION

Due to the error 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). The
undersigned therefore RECOMMENDS 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.
VI.

PROCEDURE ON OBJECTIONS

If Plaintiff 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).
Plaintiff is 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

13

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,
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)).
IT IS SO ORDERED.

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

14