Strong v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS: 1) The Commissioner's non-disability finding be vacated; 2) No finding be made as to whether Plaintiff was under a "disability"; 3) this case be remanded to the Commissioner and the Administrative Law Judge under sentence 6 of 42 U.S.C. §405(g); and 4) the case be administratively closed but not terminated on the docket of this Court. Objections to R&R due by 1/19/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 12/30/15. (mcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BONNIE J. STRONG,

:

Plaintiff,

:
Case No. 3:14cv00367

vs.

:

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

:

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

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Bonnie J. Strong brings this case challenging the Social Security

Administration’s denial of her applications for Supplemental Security Income and
Disability Insurance Benefits. She asserted through her applications that she was eligible for
benefits because she was under disability starting on January 11, 2005. Her disabilities, she
maintained, involved significant back and hand pain. The Social Security Administration
denied her applications through the written non-disability decision by Administrative Law
Judge (ALJ) Amelia G. Lombardo.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
1

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

Commissioner’s Memorandum in Opposition (Doc. #11), Plaintiff’s Reply (Doc. #12), the
administrative record (Doc. #6), and the record as a whole.
Plaintiff seeks an Order remanding the matter to the Social Security Administration
either for payment of benefits or for further proceedings. The Commissioner seeks an
affirmance of the ALJ’s non-disability decision.
II.

Background
A.

Plaintiff’s Vocational Profile and Testimony

Plaintiff was 49 years old on the date she allegedly became disabled. This placed her
in the category of a younger person for the purpose of determining whether she was eligible
for benefits. She has a limited education. Her employment history reveals that she has held
jobs for short periods of time with minimal earnings. She therefore lacks past work
experience that is relevant to her applications for benefits.
During the administrative hearing by ALJ Lombardo, Plaintiff testified that she has
problems dealing with people. She has anxiety attacks that cause her to “freak out at times.”
(Doc. #6, PageID #91). This occurs once a day. She has “problems going out in public and
dealing with people.” Id. at 93. Her family physician, Dr. Erdy, prescribes medication for
her anxiety attacks. She has crying spells daily and nightmares due to domestic violence she
has suffered. She has memory problems like not recalling whether she has taken her
medications. Her mind will also go blank during conversations with her ex-husband and she
can’t remember what they were talking about.

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Plaintiff explained that she has herniated disks in her back and a ruptured sciatic
nerve. She has been prescribed pain medications, including Vicodin. She does not like
taking Vicodin due to her past drug addiction. She stopped using drugs in about 2005.
Plaintiff estimated that on a typical day, her pain level is at 4 or 5 on a 0-to-10 scale
(0 equaling no pain; 10 equaling the worst pain she could imagine). She has level-5 pain in
her leg all the time. She can walk about 2 blocks but will be hurting as a result. When she
sits, she needs to keep adjusting her position. The doctor told her not to lift anything over 5
pounds, and she thinks this is about the most she can lift.
As to her daily activities, she does the dishes but must sit after 10 to 15 minutes. She
does her own laundry and will make a sandwich for herself when hungry. Her ex-husband,
with whom she lives, takes care of the remaining housework. She goes shopping with her
ex-husband on a good day, once or twice a month. They try to go when it is not crowded.
She does not have any hobbies. During a typical day, she plays games on her cellphone,
watches TV, and takes naps.
Plaintiff further testified that she has a hearing problem. At times during her
testimony, she had difficulty hearing the questions she was asked. E.g., Doc. #6, PageID#s
85-87. She worked in the past at a Frisch’s restaurant but her hearing problem limited her to
salad-bar duties, like cleaning and keeping the salad bar stocked. Before this, she worked at
times as a bartender and a waitress, interacting with people quite a bit. Her ability to interact
like this changed after she experienced domestic violence in 2011. In one incident, she was

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pushed down a flight of stairs. Before this happened, she did not have issues with her back
and leg. During her nightmares, she re-experiences this event.
B.

Medical Evidence

Plaintiff’s family physician Dr. Erdy began treating her in February 2013. She
originally presented with “depression, polyneurothy, bipolar disorder, back pain from trauma
relating to injuries sustained during an abusive encounter in 2005 or thereabouts.¨ (Doc. #6,
PageID #703). In May 2013, Dr. Erdy wrote a narrative report and completed a physical
capacity evaluation. Id. at 703-08. Dr. Erdy observed the following about Plaintiff’s mental
impairments:
She generally presents to the office in a quiet, subdued, almost fearful
manner and remains quiet and passive throughout her visits each time. She is
well dressed, exhibits good hygiene and seems pleasant though quiet and
reserved. She describes a harrowing time with her prior partner until he threw
her down the stairs causing significant injury. He was imprisoned, I am told,
but is out and she feels he may be stalking her. She lives in fear and her
demeanor bears this out. She is currently involved with another man and that
relationship is rocky at best from what she tells me. This is largely because of
her and her troubles.
Id. at 703. Dr. Erdy identified either marked or extreme limitations in various categories of
social interaction, id. at 706; marked limitation in various areas under the heading “sustained
concentration and persistence,” id. at 707; and either marked or extreme limitations in
adaptation, id. at 707-08.
A physical-capacity form asked Dr. Erdy to provide for additional remarks including
any additional work-related limitations not yet addressed on the form. Dr. Erdy responded

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Cannot separate her body from her mind. Due to her mental condition, a result
of abuse, physical altercations, and years of no support, she would have a very
difficult time engaging in meaningful, sustainable, collegial relationships and
be more fearful, paranoid, vulnerable due to her experiences to date.
Id. at 705. In a psychological-assessment form, Dr. Erdy noted:
[Patient] is a victim of spousal abuse, PTSD, severe depression. I doubt that
she could engage in any reasonable manner. She deteriorates in a one on one
relationship with a friend who gave her free reign.
Id. at 708. Dr. Erdy prescribed several medications to treat Plaintiff’s mental-health
problems – namely, Effexor, Tegretol, and Seroquel.2 Id. at 709.
As to Plaintiff’s physical limitations, Dr. Erdy opined that she could sit, stand, and
walk 4 hours each in a work day and work situation; she could lift 11 to 20 pounds on an
occasional basis; and she could use her hands for repetitive grasping, pushing, pulling, and
fine manipulation. Id. at 704. Dr. Erdy believed that Plaintiff would likely have partial or
full-day unscheduled absences from work, occurring 5 or more days per month due to her
diagnosed conditions, pain and/or side effects of medication. Id. at 705.
On April 11, 2013, psychologist Dr. Firmin conducted a consultative-psychological
examination of Plaintiff. The results appear in Dr. Firmin’s narrative report and in a form he
completed titled “Mental Functional Capacity Assessment.” Id. at 712-20. In the latter
form, Dr. Firmin indicated his opinion that Plaintiff had marked limitations – the highest
degree of limitation on the scale used by the form – in her ability (1) to complete a normal
2

Effexor treats depression and various anxiety disorders. Tegretol and Seroquel treat episodes of
mania or depression in bipolar disorder, among other problems. Https://www.nlm.nih.gov (search:
MedllinePlus – Drugs & Supplements database).

5

workday and workweek without interruption from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods; (2)
to interact appropriately with the general public; (3) to accept instructions and respond
appropriately to criticism from supervisors; (4) to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; (5) to maintain socially appropriate
behavior and adhere to basic standards of neatness and cleanliness; and (6) to respond
appropriately to changes in the work setting. Id. at 712. Dr. Firmin concluded that Plaintiff
was employable and would remain so for 12 months or more.
In his narrative report, Dr. Firmin explained:
Overall, the applicant’s description of mental health complaints was
consistently described and was congruent with the applicant’s presenting issue
indicated in the present report. Naturally, she was not expected to show the
plenary symptoms of mental health issues, particularly when many individuals
attempt to be polite and display good character when participating in a
professional interview. Notwithstanding, the applicant showed sufficient
clinical indicators to suggest reasonable reliability of the self-report data.
Id. at 713. Dr. Firmin described Plaintiff’s mood as “nervous and pessimistic,” and “her
affect and emotional responsiveness was judged to be melancholic and worried.” Id. at 716.
She described previous episodes of manic moods followed by depressive moods. Regarding
anxiety, she “showed outward manifestations of crying and leg shaking and
she reported some symptoms of anxiety in the last 6 months, including restlessness or
feeling keyed up or on edge, difficulty concentrating, irritability, and sleep disturbances.” Id.
In a clinical note, Dr. Firmin related that Plaintiff’s symptoms “have included

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undergoing events that involved the potential for serious injury, generated intense fear, and
resulted in recurrent and intrusive recollections of the event. The indicated trauma resulted
in efforts to avoid conversations and activities associated with the event, markedly
diminished involvement in significant activities, becoming irritable, and having difficulty in
concentration.” Id. at 717.
When ALJ Lombardo issued her decision, Dr. Firmin’s report was not in the record.
Plaintiff’s counsel did not receive the report until 1 month after the ALJ’s issued her
decision. The Appeals Council added Dr. Firmin’s report to the administrative record.
A detailed description of the remaining evidence is unnecessary because the
undersigned has reviewed the entire administrative record and because both the ALJ and
Plaintiff’s counsel have discussed the relevant records concerning Plaintiff’s physical and
mental impairments with citations to specific evidence. The Commissioner adopts and
incorporates the ALJ’s factual discussion of the relevant medical evidence.
III.

“Disability” Defined and
ALJ Lombardo’s Decision
To be eligible for Disability Insurance Benefits or Supplemental Security Income a

claimant must be under a “disability” as the term is defined by the Social Security Act. See
42 U.S.C. §§423(a), (d), 1382c(a). The definition of the term “disability” is essentially the
same for both benefit programs. See Bowen v. City of New York, 476 U.S. 467, 469-70
(1986). Narrowed to its statutory meaning, a “disability” includes only physical or mental
impairments that are both “medically determinable” and severe enough to prevent the
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applicant from (1) performing his or her past job and (2) engaging in “substantial gainful
activity” that is available in the regional or national economies. See Bowen, 476 U.S. at
469-70.
ALJs apply an algorithm in 5 sequential steps to determine whether or not an
applicant is entitled to benefits. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see.3 ALJ
Lombardo’s pertinent findings occurred at steps 2, 3, and 4 of the applicable algorithm.
At step 2, ALJ Lombardo found that Plaintiff has the severe impairments of
degenerative disc disease of the lumbar spine; hearing problems of unknown etiology, and
bipolar disorder. (Doc. #6, PageID #66). At step 3, the ALJ concluded that Plaintiff does
not have an impairment, or combination of impairments, that meets or equals the severity of
one in the Commissioner’s Listing of Impairments.4
At step 4, ALJ Lombardo assessed Plaintiff’s residual functional capacity or the most
she could do in a work setting despite her impairments. See 20 C.F.R. §404.1545(a); see
also Howard v. Commissioner of Social Sec., 276 F.3d 235, 239 (6th Cir. 2002). She
concluded that Plaintiff could perform light work5 “subject to the following limitations:
unskilled work that is low stress with no assembly line production quotas and not fast paced;

3

The remaining citations to the regulations will identify the pertinent Disability Insurance
Benefits regulations with full knowledge of the corresponding Supplemental Security Income regulation.
4

The Listings are found at 20 C.F.R. Part 404, Subpart P, Appendix 1.

5

“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).

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occasional contact with the general public, co-workers, and supervisors; and noise level of 3
per DOT [Dictionary of Occupational Titles].” (Doc. #6, PageID #69).
The ALJ found at step 5 that Plaintiff could perform a significant number of jobs that
exist in the national economy.
The sum and substance of the ALJ’s sequential evaluation led her to ultimately
conclude, as noted previously, that Plaintiff was not under a benefits-qualifying disability.
IV.

Judicial Review
The Social Security Administration’s denial of Plaintiff’s applications for benefits –

here, embodied in ALJ Poulose’s decision – is subject to judicial review along two lines:
whether the ALJ applied the correct legal standards and whether substantial evidence
supports the ALJ’s findings. Blakley v. Comm’r of Social Sec., 581 F.3d 399, 405 (6th Cir.
2009); see Bowen v. Comm’r of Social Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Reviewing the ALJ’s legal criteria for correctness may result in reversal even if the record
contains substantial evidence supporting the ALJ’s factual findings. Rabbers v. Comm’r of
Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
The substantial-evidence review does not ask whether the Court agrees or
disagrees with the ALJ’s factual findings or whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Social Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Social. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999). Instead, substantial evidence supports the ALJ’s factual findings when “a

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‘reasonable mind might accept the relevant evidence as adequate to support a conclusion.’”
Blakley, 581 F.3d at 406 (quoting Warner v. Comm’r of Social 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.

V.

Remand: 42 U.S.C. §405(g), Sentence 6
Plaintiff contends that a remand to the Social Security Administration is warranted

under sentence 6 of 42 U.S.C. §405(g) for consideration of consulting psychologist Dr.
Firmin’s opinions, which did not come to light until a month after the ALJ’s decision even
though it pre-dates the ALJ’s decision. Once Plaintiff’s counsel received Dr. Firmin’s
report, he submitted it to the Appeals Council.
The Commissioner counters that a sentence 6 remand is unwarranted because Dr.
Firmin’s report is not new evidence – it is dated 3 months before the ALJ’s decision; it is
duplicative and does not constitute material evidence; and there is no good cause to justify
Plaintiff’s failure to present it to the ALJ.
Evidence submitted in the first instance to the Appeals Council may only be
considered by this Court to determine if a remand is appropriate pursuant to sentence 6 of §
405(g). Casey v. Secretary of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993); see Cotton v.
Sullivan, 2 F.3d 692 (6th Cir. 1992); see also Wyatt v. Secretary of HHS, 974 F.2d 680, 685
(6th Cir. 1992). A sentence 6 remand is warranted only upon a showing that the evidence is
new and material, and that there is good cause, meaning “a reasonable justification for
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failing to present the evidence to the ALJ.” Winslow v. Comm’r of Soc. Sec., 566 Fed.
App’x 418, 422 (6th Cir. 2014) (citing Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276
(6th Cir. 2010)); see 42 U.S.C. §405(g). “The proponent of the new evidence bears the
burden of proof that the evidence is both new and material.” Longworth v. Comm'r Soc.
Sec., 402 F.3d 591, 598 (6th Cir. 2005) (citation omitted).
The Commissioner is correct to point out that Dr. Firmin’s report was not new
because it was dated April 11, 2013, 3 months before the ALJ’s decision on July 11, 2013.
Yet, the Commissioner incorrectly views the evidence solely with existential glasses. Surely
the report was not new in the sense that it existed – i.e., it had corporeal form – before the
ALJ issued her decision. But the applicable term “new” is not limited to mere existence:
“For the purposes of a 42 U.S.C. §405(g) remand, evidence is new only if it was ‘not in
existence or available to the claimant at the time of the administrative proceeding.” Foster
v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (quoting, in part, Sullivan v. Finkelstein, 496
U.S. 617, 626 (1990)). The record in the present case reveals that although Dr. Firmin’s
report existed, it was not available to Plaintiff’s counsel before the ALJ’s decision.
Plaintiff’s counsel explained during the administrative hearing that the Ohio Department of
Job and Family Services [Ohio DJFS] had “recently outsourced all of their records to a firm
in Massachusetts.” (Doc. #6, PageID #85). He further explained that he was attempting to
“run down” the results of consultative exams, but it had “been a very interesting couple of
months trying to get anything from them [Ohio DJFS]. They don’t seem to know where the

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records are lately.” Id. The administrative record does not contain any contrary information
and there is no real dispute that Dr. Firmin’s report was unavailable to Plaintiff’s counsel –
through no fault of his own – before the ALJ issued her decision. This satisfies the
disjunctive “new or not available” element needed to support a sentence-6 remand. See
Foster, 279 F.3d at 357.
The Commissioner also contends that Plaintiff cannot show good cause for failing to
present Dr. Firman’s report to the ALJ. The Commissioner points out that when the ALJ
asked if counsel wanted to keep the record open for a week or so to get consultative exam
reports, Plaintiff’s counsel said, “I wouldn’t necessarily keep the record open for that ....”
(Doc. #6, PageID #85). Counsel’s statement must be viewed together with his explanation
about the difficulty, indeed the barrier, he had encountered when trying to get records from
the Ohio DJFS. Plaintiff’s counsel informed the ALJ about the particular reason for the
problem caused by the Ohio DJFS’s recent outsourcing of record-keeping. Facing this
barrier to producing the record – which was wholly beyond counsel’s control – he had a
reasonable justification, i.e., good cause, for not submitting Dr. Firmin’s report to the ALJ
before she issued her decision.6
The Commissioner next contends that Dr. Firmin’s report was not material to the
ALJ’s disability determination because Dr. Firmin’s assessment was similar to Dr. Erdy’s
6

Additionally, given that Plaintiff’s counsel did not receive the record until about 1 month after
the ALJ’s decision, Plaintiff would not have been able to submit the record in a timely manner even if he
had asked the ALJ keep the record open for a week or so after the hearing. Consequently, counsel’s
statement about not necessarily keeping the record open was inconsequential.

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assessment, which the ALJ properly rejected.
Evidence is “‘material’ if there is a reasonable probability that the ALJ would have
reached a different decision had the additional evidence been presented.” Templeton v.
Comm'r of Soc. Sec., 215 F. App'x 458, 463 (6th Cir. 2007) (citing Foster, 279 F.3d at 357).
The Commissioner’s contention lacks merit because the ALJ discounted Dr. Erdy’s opinion
based in part on his lack of specialization. Given this, the addition of Dr. Firmin’s report to
the record would have 2 significant consequences. First, it follows logically from the ALJ’s
reasoning that if Dr. Erdy’s non-specialist opinions were due less weight, Dr. Firmin’s
opinions in his area of expertise would deserve more weight. Second, Dr. Firmin’s opinions
confirm the validity of Dr. Erdy’s opinions to the extent their opinions were similar.
Similarities between their opinions would then justify placing more weight on Dr. Erdy’s
opinions under the consistency factor. See 20 C.F.R. §404.1527(c)(4). Given this, there was
a “reasonable probability” that the ALJ would have reached a different decision if Dr.
Firmin’s report had been presented to her. And, therefore, Dr. Firmin’s report was material
to the ALJ’s weighing of Dr. Erdy’s opinion and to the ALJ’s disability determination.
The Commissioner points out that the Appeals Council considered whether the
additional evidence provided a basis for reversing the ALJ’s decision, and it “was not
required to do more.” (Doc. #11, PageID #765). In support, the Commissioner relies on
several cases from outside the Sixth Circuit. Each case the Commissioner relies on is
addressed whether the Appeals Council must provide an explanation or specific findings of

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fact concerning evidence that was added to the administrative record after the ALJ’s
decision.7 Plaintiff does not contend that the Appeals Council had a duty to articulate its
reasoning or findings beyond the information it provided. In the present case, moreover,
Plaintiff has met her burden of establishing the elements needed to support a sentence 6.
Because of this, the Court is not bound by the Appeals Council’s decision to deny review but
instead has the statutory authority to remand the matter for further proceedings in light of the
new and material evidence. See 42 U.S.C. §405(g).
Accordingly, a remand of this matter under sentence 6 of 42 U.S.C. §405(g) is
warranted.8
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff was under a “disability” within the
meaning of the Social Security Act;

3.

This case be remanded to the Commissioner and the Administrative Law Judge
under sentence 6 of 42 U.S.C. §405(g) for further consideration consistent with
this Report and a Decision and Entry adopting this Report; and

7

The Commissioner cites Parks ex rep D. P. V. Comm’r Soc. Sec. Admin., 783 F.3d 847, 852-52
(11th Cir. 2015); Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782-83 (11th Cir. 2014); Meyer v.
Astrue, 662 F.3d 700, 705-06 (4th Cir. 2011); Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir.
2006).
8

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis
of the parties’ remaining contentions is unwarranted.

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4.

The case be administratively closed but not terminated on the docket of this
Court.

December 30, 2015
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 Recommendation is 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 Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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