Mack v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS re 1 - IT THEREFORE IS RECOMMENDED THAT: 1. The Commissioner's final non-disability decision be reversed. 2. Plaintiff Shirley Mack's case be REMANDED to the Social Security Administration for payment o f benefits, based on her disability onset date of March 24, 2000, consistent with the Social Security Act. 3. The case be terminated on the docket of this Court. Objections to R&R due by 8/16/2013. Signed by Magistrate Judge Sharon L Ovington on 7/30/2013. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SHIRLEY MACK,

:

Plaintiff,

:
Case No. 3:12cv00115

vs.

:

CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Shirley Mack worked full-time for many years as a licensed practical nurse

in a nursing home (August 1983 to March 2000). Various health problems – including back,
neck, pain, and right-shoulder pain, etc. – ended her full-time employment. She later applied
for Disability Insurance Benefits asserting that on March 24, 2000 and thereafter, she was
under a “disability” due to a “plate” in her neck, a surgically fused spinal column, pain in
her shoulders and neck, depression, and anxiety. (Tr. 141).
An Administrative Law Judge for the Social Security Administration, Melvin A.
Padilla, denied Mack’s application on two separate occasions based on his conclusion that

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

she is not under a “disability” as defined by the Social Security Act. United States District
Judge Walter Herbert Rice vacated each administrative decision and remanded the matter for
further proceedings.
During the most recent administrative proceedings on remand, Administrative Law
Judge Amelia G. Lombardo collected additional medical evidence, held an evidentiary, and
issued a decision finding that Mack was under a benefits-qualifying disability beginning on
January 1, 2009, but not before. (Tr. 696-715).
Mack brings the present case challenging ALJ Lombardo’s non-disability finding.
Mack mainly contends that she was under a benefits-qualifying disability beginning on
March 24, 2000 through January 1, 2009. The case is before the Court upon Mack’s
Statement of Errors (Doc. #7), the Commissioner’s Memorandum in Opposition (Doc. #10),
Mack’s (Doc. #12), the administrative record, and the record as a whole.
Mack seeks an Order awarding her Disability Insurance Benefits. The Commissioner
seeks an Order affirming ALJ Lombardo’s decision. The Court has subject matter
jurisdiction over this case and controversy. See 42 U.S.C. §405(g).
II.

“Disability” Defined
The Social Security Administration provides Disability Insurance Benefits to

individuals who are under a “disability,” among other eligibility requirements. Bowen v. City
of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. §423(a)(1)(D). The term “disability”
– as defined by the Social Security Act – has specialized meaning of limited scope. It
encompasses those who suffer from a medically determinable physical or mental impairment
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severe enough to prevent them from engaging in substantial gainful activity. See 42 U.S.C. §
423(d)(1)(A); see also Bowen, 476 U.S. at 469-70. An applicant for Disability Insurance
Benefits bears the ultimate burden of establishing that he or she is under a “disability.” Key
v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997); see Wyatt v. Sec’y of Health & Human
Servs., 974 F.2d 680, 683 (6th Cir. 1992); see also Hephner v. Mathews, 574 F.2d 359, 361
(6th Cir. 1978).
III.

Background
Mack was over age 50 when she applied for Disability Insurance Benefits (DIB) and

on her alleged disability onset date (March 24, 2000). She was therefore considered a person
“closely approaching advanced age” under Social Security Regulations. 20 C.F.R.
§404.1563(d). She turned age 55 in May 2003, thus becoming a “person of advanced age”
under Social Security Regulations. 20 C.F.R. §404.1563(e). On the date of ALJ’s
Lombardo’s September 2011 decision, Mack was 63 years old. She has a high school
education and training as a licensed practical nurse.
ALJ Padilla held the first administrative hearing in 2003. Mack testified that she was
working part time as a licensed practical nurse. The work, however, was infrequent, only
one to three days or sometimes fours days per month. (Tr. 47). Her employer often asked her
to work, but she was able to work only one time out of ten requests. (Tr. 70). Depression
prevented her from working more often. Id. She also worked much slower than when she
worked full time. Her tasks included giving patients medications and sometimes helping
them get dressed. (Tr. 48). When a patient wanted to be moved from a bed to a wheelchair,
3

Mack needed help. She explained, “I ... try to find someone that can do it for me or at least
be with me. I never do it by myself.” (Tr. 49). Due to her neck problems, Mack also had a lot
of trouble pushing the “med cart” by herself because it was too heavy. (Tr. 50). She
described her neck pain as “deep, deep, sometimes burning, sometimes a real thick type of
pain ....” Id.
Psychologist Dr. Buban reviewed the administrative record and listened to Mack’s
testimony during ALJ Padilla’s first hearing. Dr. Buban then testified:
[S]he is working at least part-time right now. So I don’t see any limitations in
social functioning. I don’t hear any of that. They keep calling her, wanting her
to go back to work. Obviously she must be socially appropriate when she’s
there. She must relate well to supervisors if she can say no nine out of ten
times, and they still call her. She must be appropriate with the clientele and coworkers, so I don’t see any problem there.... I don’t see any limitation in her
ability to perform complex or detailed tasks. She’s still functioning at the level
she was functioning before. In terms of memory and concentration, those
easily can be due to the medications that she’s on, and having nothing to do
with depression or, you know, any physical condition that she has. So any
difficulties in concentration or attention are going to be mild. You know, if
she’s – if she has a significant amount of pain and is experiencing a significant
amount of emotional distress, then it’s possible that it would be at the
moderate range. But even in her testing – in her objective testing – there’s no
consistent result to indicate any problems with memory, concentration, or
attention.
(Tr. 77). Dr. Buban further testified that Mack’s “primary disability is not
psychological/psychiatric, and that is my opinion that, aside from her pain condition, these –
the depression would not be – would not significantly interfere with her work performance,
as it doesn’t now.” (Tr. 80). Dr. Buban noted, “In summation..., I see the depression as a
contributing factor, certainly probably increasing her level of distress....” (Tr. 79-80).

4

In his first decision, ALJ Padilla credited Dr. Buban’s opinion without providing any
explanation in contravention of 20 C.F.R. §404.1527(f)(iii) and Social Security Ruling 966p. (Tr. 440-41, 454). The error was not harmless, and for this and other reasons, a remand
was warranted. (Tr. 440-41, 454-61).
Three years later, during ALJ Padilla’s second hearing in August 2006, no medical
expert testified. Mack testified that she was not working part time. (Tr. 647). The most she
had worked was when she had previously worked part time in the nursing home, twice a
month. (Tr. 648). After she worked, she would go straight to bed. She testified, “And I stay
in bed after my last eight hour[s]. I have to stay. It’s Saturday or Sunday. And then I come
home and I’m in bed until Tuesday after my last day.... “It’s almost Sunday night – Sunday
evening, all day Monday. And then I usually get out of bed on Tuesday.” (Tr. 662-63).
Mack woke up with a headache almost every morning along with pain in her neck,
across her shoulders, and down her arms. She described the pain is as a “deep dull throbbing
.... A deep hurt. And this headache goes along with it.” (Tr. 649). As to depression, she cried
daily “at just the least little thing.” (Tr. 651). She had no appetite and had difficulty sleeping
each night, usually waking after three hours. She took medications – Ambien, Flexeril, and
Topoman – at bedtime. (Tr. 652-53). She took Methadone for pain relief. Despite taking
Zimbalta for depression, she remained “so depressed.” (Tr. 653).
Mack testified that during an average day, she could walk one-half hour to two hours
before needing to sit. (Tr. 655). She could stand “a couple of hours.” Id. She hurts more
when she sits and can sit for only 20 to 30 minutes before needing to stand and move about.
5

On a bad day, about half her days, she could stand and walk 10 to 15 minutes, then she
would return to bed. (Tr. 660-61).
Mack’s attorney has provided a detailed and helpful summary, particularly of Mack’s
mental-health records. (Doc. #7, PageID at 45-49). In light of Mack’s summary, other
information in the administrative record, and the prior judicial and administrative
summaries, a further detailed review is presently unwarranted. See Doc. #7, PageID at 2328, 43-49; Tr. 416-24, 700-10, 733-40.
IV.

ALJ Lombardo’s Decision
Social Security Regulations require ALJs to resolve a disability claim through a

five-Step sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(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), the complete sequential evaluation answers five questions:
1.

Has 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 (the Listings), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s residual functional capacity, can she perform her
past relevant work?

5.

Considering the claimant’s age, education, past work experience, and
residual functional capacity, can he or she perform other work available
in the national economy?

20 C.F.R. § 404.1520(a)(4); see Ealy v. Comm’r of Social Sec., 594 F.3d 504, 512 (6th Cir.

6

2010).
ALJ Lombardo’s pertinent findings began at Step 2 of the sequential evaluation
where she concluded that Mack has the severe impairments of degenerative disc disease of
the cervical spine with the residual effects of spinal surgeries. (Tr. 700). ALJ Lombardo
found no severe mental impairment, even though ALJ Padilla had previously concluded on
two separate occasions that Mack had severe mental impairments. ALJ Padilla found in
August 2003 that Mack had the severe mental impairment of “affective disorder with
features of depression and anxiety that significantly affect her ability to perform basic work
activity.” (Tr. 29). In June 2007, ALJ Padilla found that Mack had the severe mental
impairment of “chronic pain disorder and affective disorder with features of depression and
anxiety.” (Tr. 416).
ALJ Lombardo concluded at Step 3 that Mack did not have an impairment or
combination of impairments that met or equaled one in the Listings. (Tr. 710).
At Step 4, the ALJ found that before January 1, 2009, Mack retained the residual
functional capacity to perform light work without limitations.2 (Tr. 710-11). Beginning on
January 1, 2009, Mack could perform only sedentary work, according to the ALJ.3 (Tr. 715).
As to possible limitations due to mental health difficulties, the ALJ wrote at Step 4:
The necessity for non-exertional limitations associated with mental
2

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds....” 20 C.F.R. §404.1567(b).
3

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.” §404.1567(a).

7

impairment has been rebutted (see Finding No. 3 [Step 2]). Similarly, it is
found that the necessity for any additional limitations that would preclude the
full range of light exertion has not been established.
(Tr. 711). The ALJ also concluded at Step 4 that Mack was unable to perform her past
relevant work as a licensed practical nurse (medium work). (Tr. 716).
At Step 5, the ALJ concluded that before January 1, 2009, given Mack’s residual
functional capacity for the full range of light work, the Grids dictated a finding of not
disabled. (Tr. 716; citing Medical-Vocational Guidelines, 20 C.F.R. Subpart P, Appendix 2,
§§202.07, 202.15).
Applying the Commissioner’s Listing of Impairments, the ALJ ultimately
concluded that Mack was not under a disability before January 1, 2009, but she was under a
disability beginning on January 1, 2009 and was then eligible for Disability Insurance
Benefits. (Tr. 716-17).
V.

Judicial Review
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ

applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
8

Cir. 1999). Instead, the ALJ’s factual findings are upheld if the substantial-evidence
standard is met – that is, “if a ‘reasonable mind might accept the relevant evidence as
adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r
of Soc Sec., 375 F.3d 387, 390 (6th Cir. 2004). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at
241.
The second line of judicial inquiry, reviewing for correctness the ALJ’s legal
criteria, may result in reversal even if the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc Sec., 582 F.3d
647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘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 in part
Bowen, 478 F.3d at 746 and citing Wilson v. Comm’r. of Social Sec., 378 F.3d 541,
546-47 (6th Cir. 2004)).
VI.

Discussion
Mack contends that the ALJ failed to follow the Court’s remand Order at Step 2 of

the sequential evaluation by finding that she did not suffer from a severe mental impairment.
Mack further argues that by finding that she did not have a severe mental impairment, the
ALJ circumvented the requirement to consider the combination of Mack’s severe and nonsevere impairments, particularly when assessing her residual functional capacity.
9

The Commissioner contends that the ALJ did not err at Step 2 because the Court’s
remand decision never discussed, weighed, or analyzed whether any of Mack’s impairments
were severe; instead, the Court merely recognized that ALJ Padilla previously found Mack
had “severe impairments of vertobrogenic disorder in the cervical spine with chronic pain
and residuals of surgery and affective disorder with features of depression and anxiety.” (Tr.
727). Because of this, according to the Commissioner, the Court did not preclude the ALJ
from reaching a different conclusion about which of Mack’s impairments were severe.
In his remand Order, Judge Rice provided the following detailed instruction:
[T]he Administrative Law Judge is to properly evaluate Plaintiff’s complaints
of pain, by applying the rules, regulations and pertinent case law in the
assessment of pain and, further, to consider the results of said assessment in
combination with the Plaintiff’s severe impairments of vertebrogenic disorder
in the cervical spine with features of depression and anxiety.
(Tr. 728).
Social Security ALJs are not free to ignore judicial Orders:
In some Social Security cases, district courts will include detailed
instructions concerning the scope of the remand and the issues to be addressed.
In such cases, “[d]eviation from the court’s remand order in subsequent
administrative proceedings is itself legal error, subject to reversal on further
judicial review.’ Sullivan v. Hudson, 490 U.S. 877, 886, 109 S.Ct. 2248, 104
L.Ed.2d 941 (1989). See also Mefford v. Gardner, 383 F.2d 748, 758 (6th
Cir.1967) (noting “the general rule that, on the remand of a case after appeal, it
is the duty of the lower court, or the agency from which appeal is taken, to
comply with the mandate of the court and to obey the directions therein
without variation and without departing from such directions.”). These cases
stand for the proposition that the administrative law judge may not do anything
expressly or impliedly in contradiction to the district court’s remand order.
These cases do not preclude the ALJ from acting in ways that go beyond, but
are not inconsistent with, the district court’s opinion....

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Hollins v. Massanari, 49 Fed. App'x. 533, 536 (6th Cir. 2002).
The remand Order in this case instructed the ALJ to evaluate Mack’s pain by
considering both her physical impairments combined with “features of depression and
anxiety.” (Tr. 728). Rather than do this, the ALJ found no severe mental impairment and did
not consider the effects on her levels of pain caused by the combination of Mack’s physical
and mental impairments. “[T]here was, in reality, no combined treatment in the ALJ’s
subjective symptom analysis or elsewhere.” Blankenship v. Bowen, 874 F.2d 1116, 1123-24
(6th Cir. 1989). While the remand Order did not specifically instruct the ALJ to reconsider,
or preclude her from reconsidering, whether Mack was under a severe mental impairment,
Judge Rice focused on the relationship between Mack’s chronic pain and her mental health
issues. Specifically, Judge Rice explained:
Given that the Administrative Law Judge [Padilla] found, on remand,
that the claimant “has severe impairments of vertegbrogenic disorder in the
cervical spine with chronic pain and residuals of surgery and affective disorder
with features of depression and anxiety.” It is clear that the relationship
between said pain and her mental health issues is of paramount importance in
evaluating whether she is disabled within the meaning of the Social Security
Act. Indeed, such was the reason why the initial remand to the Defendant
Commissioner, for the purpose of analyzing that pain, within the rules,
regulations, and applicable case law, was ordered by the Court.
(Tr. 727)(emphasis added). ALJ Lombardo’s finding 2 at Step that Mack did not have a
severe mental impairment was inconsistent with, and ignored or overlooked, Judge Rice’s
explicitly stated concern over the need to address the relationship between Mack’s pain and
the combination of her physical and mental-health issues. This was error even though the
Court did not provide a separate, written analysis of whether or not Mack had a severe
11

mental impairment under the de minimis standard applicable at Step 2. Higgs v. Bowen, 880
F.2d 860, 862 (6th Cir. 1988)(“Under the ... de minimis view, an impairment can be
considered not severe only if it is a slight abnormality that minimally affects work ability
regardless of age, education, and experience.”).
However, the ALJ’s error at Step 2 might be “legally irrelevant” because “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 step.” Simpson v. Comm’r of Soc. Sec., 344 Fed.Appx. 181, 190 (6th Cir.
2009)(citing Anthony v. Astrue, 266 Fed.Appx. 451, 457 (6th Cir. 2008)(citing, in turn,
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)). This
possible legal irrelevancy does not apply to ALJ Lombardo’s decision due to the failure to
consider the combination of Mack’s severe physical impairments and non-severe mental
impairments when assessing her residual functional capacity and pain at Step 4. On this
point, Simpson v. Comm’r of Soc. Sec., 344 Fed.Appx. 181, 191 (6th Cir. 2009) leads the
way.
The ALJ in Simpson concluded, like ALJ Lombardo, that the claimant had severe
physical impairments. The ALJ was therefore required to consider the severe physical
impairments with the mental impairments (adjustment disorder with anxiety and depression)
when assessing the claimant’s residual functional capacity at Step 4. Simpson, 344
Fed.Appx. at 191. The Court of Appeals explained:
Instead, the ALJ held that “based on my evaluation of the claimant’s
12

mental impairment as not a severe impairment ... she does not have any
limitations stemming from that mental impairment.” The ALJ’s finding is
contrary to controlling law.
Id.
ALJ Lombardo’s decision is contrary to the same controlling law discussed in
Simpson. Id. at 90-91. When assessing Mack’s residual functional capacity, ALJ Lombardo
did not provide any meaningful consideration of Mack’s mental impairments combined with
her severe physical impairments. The ALJ instead assessed only Mack’s physical
impairments by relying on the Step-2 finding that Mack had no severe mental impairment.
The ALJ concluded without further discussion of Mack’s mental impairments at Step 4,
“The necessity for non-exertional limitations associated with mental impairment has been
rebutted (see Finding No. 3 [Step 2]).” (Tr. 711). In this manner, as in Simpson, ALJ
Lombardo’s decision neglects to adhere to the following mandate: “[o]nce one severe
impairment is found, the combined effect of all impairments must be considered, even if
other impairments would not be severe.” Simpson, 344 Fed.Appx. at 191 (quoting White v.
Comm’r of Soc. Sec., 312 Fed.Appx. 779, 787 (6th Cir. 2009)(other citations omitted);
Walker v. Sec'y of Health & Human Servs., 980 F.2d 1066, 1071 (6th Cir. 1992). Or, in the
mandatory language of the Regulations:
We will consider all of your medically determinable impairments of
which we are aware, including your medically determinable impairments that
are not “severe” ... when we assess your residual functional capacity.
20 C.F.R. §404.1545(a)(2).
This was neither a harmless error nor a minor misstep by the ALJ. Not one treating or
13

evaluating mental-health expert opined that Mack did not have a severe mental impairment.
Additionally, the record contains the opinions of numerous mental-health experts who
concluded that Mack was more than mildly impaired in various areas of her mental-work
abilities. Those opinions, if credited even in part, would show that Mack met the “de
minimis hurdle” at Step 2 or, in other words, she had more than “a slight abnormality that
minimally affect[ed]” her work ability. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988).
And those opinions would likewise play a significant role at Step 4, where it was – in Judge
Rice’s words – “ clear that the relationship between [Mack’s] pain and her mental health
issues is of paramount importance in evaluating whether she is disabled within the meaning
of the Social Security Act.” (Tr. 727).
Even the ordinarily cautious ALJ Padilla twice concluded at Step 2 that Mack had
severe mental impairments, and ALJ Padilla also included mental-work limitations in his
assessment of her residual functional capacity. Although ALJ Padilla’s prior decisions in
this case have been vacated and thus do not carry the force of law, his conclusions tend to
show that in light of the evidence of record, ALJ Lombardo’s error at Step 4 was not
harmless. Cf. Wilson, 378 F.3d at 546 (“[A] procedural error is not made harmless simply
because [the aggrieved party] appears to have had little chance of success on the merits
anyway.”)(citations omitted)).
ALJ Padilla’s decisions aside, the record contains numerous medical-source opinions
that stand in stark contrast to ALJ Lombardo’s conclusion that Mack had only mild
limitations in her mental-work activities – specifically, her activities of daily living, social
14

functioning, and ability to maintain concentration persistence, or pace. (Tr. 709).
Consequently, those opinions reveal that the ALJ’s failure to consider Mack’s physical and
mental impairments in combination was not harmless error. For example, psychologist Dr.
Benninger reviewed the record in May 2001 at the request of the Ohio Bureau of Disability
Determinations. (Tr. 243-60). He opined that Mack had a moderate restriction in her daily
activities and in her ability to maintain concentration, persistence, or pace. (Tr. 253). He also
opined that Mack was moderately limited in her ability to understand, remember, and carry
out detailed instructions; and moderately restricted in her ability to maintain attention and
concentration for extended periods. (Tr. 257). Dr. Benninger also explained that Mack could
“carry out tasks in situations where duties are static and instructions can be explained. Can
maintain concentration & attention to do work involving one or 2 steps.” (Tr. 259). His
assessment was affirmed on October 19, 2001, by nonevaluating psychologist, Dr. Karen
Stailey. (Tr. 243)
Psychologist Jerry Flexman first evaluated Mack in July and August 2001. Mack
began seeing a mental-health counselor in July 2001. In August 2002, Dr. Flexman opined:
The severity of Ms. Mack’s depression and anxiety, with the fatigue and
difficulty tolerating her chronic pain level, would greatly limit her ability to
function in a normal capacity in a work setting. She is unable to sustain
adequate attention and concentration to even simple tasks. She is unable to
follow one or two step instructions. Ms. Mack at this time, is unable to
withstand the normal stressors and pressures in a job setting.
(Tr. 337). Dr. Flexman further opined that Mack had poor to no ability to deal with work
stresses, maintain attention/concentration, behave in an emotionally stable manner, relate

15

predictably in social situations, demonstrate reliability, and understand, remember, and carry
out detailed and complex job instructions. (Tr. 338-40). Mack continued to see a counselor
in Dr. Flexman’s office through at least November 14, 2003. (Tr. 631-32).
Mack began seeing psychiatrist Dr. Birdi in July 2002. (Tr. 383-84). In January 2003,
Dr. Birdi completed interrogatories. (Tr. 371-74). He indicated that while Mack was not
prohibited from performing many of the mental demands of sustained employment, her
impairments prevented her from performing several other significant functions. Namely, he
found that she would be unable to behave in an emotionally stable manner; maintain
attention and concentration for extended periods; perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; complete a
normal workday or workweek without interruption from psychologically and/or physically
based symptoms and perform at a consistent pace without unreasonable and/or physically
based symptoms and perform at a consistent pace without unreasonable numbers and length
of rest periods. (Tr. 372-73).
Psychologist Dr. Martin evaluated Mack in August 2002, at the request of her
attorney. (Tr. 319-40). Dr. Martin also reviewed all the records in the file at the time. (Tr.
319-320). He observed pain behaviors with intermittent eye contact. Her affect was
depressed and her mood was “severely depressed, anhedonic, apathetic, irritable, and
withdrawn.” (Tr. 322). On the Beck Depression Inventory she scored in the severe
depression range. (Tr. 324). The Minnesota Multiphasic Personality Inventory (MMPI-2)
was valid and indicated that women with similar results “are frequently perceived as
16

expressing significant feelings of depression, apathy, and hopelessness..., with feelings of
insecurity and inadequacy, as over-controlled, and … persistent difficulties expressing their
feelings toward others in a direct manner.” Id. Dr. Martin concluded that Mack suffered
from Major Depressive Disorder, Recurrent type. (Tr. 326). And he indicated that she had a
Pain Disorder associated with both psychological factors and a general medical condition
and Psychological Factors affecting physical condition. (Tr. 325). He noted that Mack could
not perform any of the mental activities needed for work except one. (Tr. 327-329)
In January 2003, Dr. Payne, psychologist, evaluated Mack at ALJ Padilla’s request.
(Tr. 385-92). Dr. Payne observed that she was sad and tearful throughout the evaluation. (Tr.
386). Her stream of thought was somewhat disjointed and thought associations were
sometimes tangential. Her demeanor was apathetic and dysphoric. He observed that she was
fidgety and restless. She was distracted at times. (Tr. 387). Mack again completed the
MMPI-2, and Dr. Payne recognized that the resulting profile was valid and that it suggested
“depression, anxiety, and tension.” (Tr. 388). Dr. Payne opined that Mack’s ability to relate
to others, maintain attention and concentration for normal employment, and deal with work
stress were all markedly impaired. Id. And Mack had a marked impairment in her ability to
interact appropriately with the public, supervisors, and co-workers; respond appropriately to
work pressures in a usual work setting; and respond appropriately to changes in a routine
work setting. (Tr. 392).
In March 2006, Plaintiff was evaluated by Dr. Bienenfeld, a psychiatrist with the
Department of Psychiatry at Wright State University. (Tr. 515-519). Dr. Bienenfeld
17

observed that Mack was tearful throughout the interview. Her mood was depressed and
anxious. She lost track of questions she was answering. (Tr. 517). Results of testing,
including the Beck Depression Inventory and the Beck Anxiety Inventory, revealed severe
depression and moderately severe anxiety. Dr. Bienenfeld’s diagnosis was Major
Depression, recurrent and severe; Generalized Anxiety Disorder; and Pain Disorder. He
concluded that Mack’s depression and anxiety would severely impair her ability to withstand
the stresses and pressures of ordinary work activity. He stated, “Her sensitivity to criticism is
overwhelming. Her poor concentration inhibits her ability to work properly. She is easily
fatigued.” (Tr. 518). He also noted that depression and anxiety both amplify pain. He noted,
“Psychologically depressed and anxious people are less resilient and physiologically the
chemical factors in the brain that are active in depressive states, exaggerate the brain’s
neurophysiologic responses to pain.” (Tr. 519).
Dr. Yvonne Dalton, psychiatrist, treated Mack from January 19, 2007 through
October 17, 2008. Dr. Dalton diagnosed Mack with Bipolar Disorder NOS, Pain Disorder
associated with physical factors and general medical condition; and Generalized Anxiety
Disorder. (Tr. 1002)
Dr. Birdi completed interrogatories in February 2011. (Tr. 862-871). He believed that
the combination of Mack’s mental and physical impairments were greater than the sum of
the parts. (Tr. 863). She was unable to withstand the pressure of meeting work productivity
and work accuracy without significant risk of physical or psychological decompensation or
worsening of the physical and mental impairments, relate predictably in social situations,
18

sustain an ordinary routine without special supervision, and work in coordination with, or in
proximity to, others without being unduly distracted by them. (Tr. 866-70). Mack also had
moderate restrictions in her social functioning, daily activities, and concentration and pace.
(Tr. 870-871).
Turning to the ALJ’s evaluation of the medical source opinions, the ALJ heavily
relied on Mack’s part-time work as an LPN at a nursing home to reject the medical sources
opinions. Substantial evidence does not support this reason because Mack’s part-time work
was minimal and did not come anywhere near full-time work. When assessing a claimant’s
residual functional capacity, an ALJ’s decision must comply with Social Security Ruling 968p, 1996 WL 374184, which states, in part:
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis,
and the RFC assessment must include a discussion of the individual’s abilities
on that basis. A regular and continuing basis means 8 hours a day, for five
days a week, or an equivalent work schedule.
Id., 1996 WL 374184 at *2 (italics and bold in original). Mack testified at the first
administrative hearing that she still worked on-call as a licensed practical nurse at the
nursing home where she was previously employed; however, she was only sometimes able
to go in when they called, usually only three to four days a month. (Tr. 47). She stated that
the might call her ten times, but she might only go in one of those times. (Tr. 70). She
worked, at the most, two days every other weekend. (Tr. 517). Mack also explained that she
was
much slower at the job now and needed someone to help her do the heavy lifting, such as
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transferring a patient from a bed to a wheelchair. (Tr. 48-49). Because of her limited
concentration, she had to write long and detailed notes on the job in order to remember her
assignments. (Tr. 506). As a result, it took her about an hour longer to pass out medications
than it took the other staff members in the same position because she had to double check
the medications so frequently. (Tr. 517). So at best, Mack received accommodations from
her long-term employer that allowed her to continue to perform her work on a part-time
basis. This limited part-time work activity was not inherently contradictory to the opinion
of Dr. Birdi or the other treating and examining medical sources. This all the more since
Mack testified that she had to go to bed for one or two days after working two eight-hour
shifts over the weekend. (Tr. 516, 648, 662-663, 1019).
In short, the amount of work Mack testified to performing during a month did not
constitute work on a “regular and continuing basis” under Social Security Ruling 96-8p,
1996 WL 374184 at *2 (emphasis omitted).
Accordingly, for the above reasons, Mack’s Statement of Errors is well taken.
VII.

Reversal and Remand for Benefits
If the ALJ failed to apply the correct legal standards or his factual conclusions are not

supported by substantial evidence, the Court must decide whether to remand the case for
rehearing or to reverse and order an award of benefits. Under Sentence Four of 42 U.S.C.
§405(g), the Court has authority to affirm, modify, or reverse the Commissioner's decision
“with or without remanding the cause for rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99
(1991). Remand is appropriate if the Commissioner applied an erroneous principle of law,
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failed to consider certain evidence, failed to consider the combined effect of impairments, or
failed to make a credibility finding. Faucher v. Secretary of H.H.S., 17 F.3d 171, 176 (6th
Cir. 1994).
A reversal of the ALJ’s decision and a judicial award of benefits is warranted in the
present case, because the evidence of disability is strong while contrary evidence is weak.
See Faucher, 17 F.3d at 176. With the exception of parts of Dr. Buban’s testimony some 10
years ago (in June 2003), the medical sources of record, including state record-reviewers,
have consistently identified limitations – including marked limitations – in Mack’s ability to
perform many mental-work activities. Mack also suffers from, as ALJ Lombardo found, the
severe impairment of “degenerative disc disease of the cervical spine with residual of
functional effects of spinal surgery.” (Tr. 700). The evidence of Mack’s mental disability is
strong while contrary evidence is weak and reveals that the combination of Mack’s severe
and non-severe impairments rendered her unable to perform work activity on a “regular and
continuing” basis before January 1, 2009. In addition to the above-discussed opinions,
supra, §VI, Mack’s counsel has fully, accurately, and convincingly summarized the strong
evidence favoring the conclusion that Mack was under a disability before January 1, 2009.
See Doc. #7, PageID at 43-49, 55-60.
Even if Mack’s mental impairments are not considered, the strong evidence of her
physical limitations compared to the weak contrary evidence shows that she was under a
disability before January 1, 2009. In April 2001, Dr. Chung reported to the State agency that
her neck pain interfered with her ability to lift more than 10 pounds occasionally and five
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pounds frequently. (Tr. 303-04). Walking and standing was limited to more than one to two
hours. (Tr. 304). Mack could occasionally climb, balance, stoop, crouch, kneel, and crawl.
She was restricted in her ability to reach, handle, finger, feel, and push/pull. (Tr. 305). She
was restricted from heights, moving machinery, temperature extremes, vibrations, dust,
noise, fumes, and humidity. (Tr. 306). She could not perform even sedentary work activity.
(Tr. 307).
The evidence, moreover, establishes that the opinions provided by Mack’s treating
physician, Dr. Chung, are entitled to controlling weight under the treating physician rule.
See Blakely, 581 F.3d at 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1520(d)(2). In April
2001, Dr. Chung reported to the State agency that Mack’s neck pain interfered with her
ability to lift more than 10 pounds occasionally and five pounds frequently. (Tr. 303-04).
Walking and standing was limited to more than one to two hours. (Tr. 304). She could
occasionally climb, balance, stoop, crouch, kneel, and crawl. She was restricted in her ability
to reach, handle, finger, feel, and push/pull. (Tr. 305). She was restricted from heights,
moving machinery, temperature extremes, vibrations, dust, noise, fumes, and humidity. (Tr.
306). Mack could not perform even sedentary work activity. (Tr. 307). As Mack’s treating
physician, Dr. Chung’s sedentary-work opinion is entitled to deference. See Blakely, 581
F.3d at 406; see also 20 C.F.R. §404.1520(d)(2). Dr. Chung’s sedentary-work opinion is
based on the clinical and objective medical findings in the record as a whole. His office
notes show that she had decreased range of motion of her cervical spine, decreased sensation
in her fingertips bilaterally, limited fine manipulation, and tenderness. See Tr. 233, 236-237,
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317, 574. Physical therapy notes show that she had a reduced range of motion of her cervical
spine, tenderness, and decreased upper extremity strength bilaterally. (Tr. 186-187, 189-191)
Dr. Gupta’s exams reveal tenderness, muscle spasms, decreased range of motion. (Tr.
343). An MRI of the cervical spine in August 2004 continued to show degenerative changes
at multiple levels. (Tr. 568). A EMG on February 6, 2003 demonstrated early mild carpal
tunnel syndrome on the right upper extremity. (Tr. 572). A December 2007 MRI
demonstrated possible contact with the exiting C4 root nerve at C3-C4, some effacing of the
thecal sac at C4-C5, and mild to moderate uncinate hypertrophy and facet arthropathy with
some possible “contact and potential left exiting C6 nerve root compromise.” (Tr. 821). This
indicated a worsening of Mack’s condition from her 2004 MRI. (Tr. 568). Additionally,
while the reviewing physician opined that Mack could perform light work activity, he
specifically found, “Symptoms are attributable to cervical disc problems. Symptoms appear
proportionate to medical evidence and the severity of the symptoms is consistent with the
medical evidence.” (Tr. 262, 266). Considering the extensive record of medical evidence,
including the credible and controlling sedentary-work opinion of Mack’s treating physician
Dr. Chung, along with the three-times repeated absence of proper analysis by the ALJs, an
Order remanding this case for benefits is warranted. See Faucher, 17 F.3d at 176; see also
Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994); Listings of Impairments, 20 C.F.R. Part 404,
Subpart P, Appendix2, §§201.09, 202.01.

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IT THEREFORE IS RECOMMENDED THAT:
1.

The Commissioner’s final non-disability decision be reversed;

2.

Plaintiff Shirley Mack’s case be REMANDED to the Social Security
Administration for payment of benefits, based on her disability onset date of
March 24, 2000, consistent with the Social Security Act; and

3.

The case be terminated on the docket of this Court.

July 30, 2013

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period
is extended to seventeen days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within fourteen days after being
served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S.
140 (1985).

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