Haggard v. Social Security Administration, Commissioner of
Filing
21
MEMORANDUM OPINION in support of the following Order dismissing case.Signed by Magistrate Judge Debra C. Poplin on 11/15/18. (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KRISTI M. HAGGARD,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Deputy Commissioner for Operations,
performing the duties and functions not
reserved to the Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
No. 3:17-CV-99-DCP
MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal
Rules of Civil Procedure, and the consent of the parties [Doc. 13]. Now before the Court is
Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 16 & 17],
Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 18 & 19], and
Plaintiff’s Reply Brief [Doc. 20]. Kristi M. Haggard (“Plaintiff”) seeks judicial review of the
decision of the Administrative Law Judge (“the ALJ”), the final decision of Defendant Nancy A.
Berryhill, Acting Commissioner of Social Security (“the Commissioner”). For the reasons that
follow, the Court will DENY Plaintiff’s motion and GRANT the Commissioner’s motion.
I.
PROCEDURAL HISTORY
On April 17, 2013, Plaintiff filed an application for disability insurance benefits pursuant
to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., claiming a period of disability that
1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court hereby substitutes Nancy A.
Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved
to the Commissioner of Social Security, as the Defendant in this case.
began on December 1, 2012. [Tr. 180, 204]. After her application was denied initially and upon
reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 106]. A hearing was held on
June 16, 2015. [Tr. 48-65]. The ALJ left the record open and obtained interrogatory responses
from a medical expert, and Plaintiff submitted additional medical evidence as well. The ALJ then
held a supplemental hearing on December 9, 2015. [Tr. 29-47]. On February 1, 2016, the ALJ
found that Plaintiff was not disabled. [Tr. 14-23]. The Appeals Council denied Plaintiff’s request
for review [Tr. 1-3], making the ALJ’s decision the final decision of the Commissioner.
Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court
on March 20, 2017, seeking judicial review of the Commissioner’s final decision under Section
405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions,
and this matter is now ripe for adjudication.
II.
ALJ FINDINGS
The ALJ made the following findings:
1. The claimant last met the insured status requirements of the
Social Security Act on December 31, 2015.
2. The claimant did not engage in substantial gainful activity during
the period from her alleged onset date of December 1, 2012 through
her date last insured of December 31, 2015 (20 CFR 404.1571 et
seq.).
3. Through the date last insured, the claimant has the following
severe impairments: degenerative disc disease, migraine headaches,
history of colitis, post-traumatic stress disorder (PTSD), depression
(20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and
404.1526).
2
5. After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) except that at any one time she is limited to 4 hours of
sitting, 3 hours of standing, and 3 hours of walking; in an 8-hour day
she could sit up to 8 hours and stand and walk a combination of 6
hours; no climbing ladders, ropes, or scaffolds; no more than
occasional climbing stairs and ramps, balancing, stooping, bending
from the waist to the floor, kneeling, crouching, or crawling; no
work around hazards such as dangerous moving machinery and
unprotected heights; limited to performing simple, repetitive nondetailed tasks with coworker and public contact no more than
occasional, casual, and superficial where supervision is direct and
non-confrontational that is she would not require any special
supervision and changes in the workplace should be infrequent and
gradually introduced.
6. Through the date last insured, the claimant is unable to perform
any past relevant work. (20 CFR 404.1565).
7. The claimant was born on September 21, 1970 and was 45 years
old, which is defined as a younger individual age 18-49, on the date
last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there
were jobs that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social
Security Act, at any time from December 1, 2012, the alleged onset
date, through December 31, 2015, the date last insured (20 CFR
404.1520(g)).
[Tr. 16-23].
3
III.
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled
pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
Substantial evidence is “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.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the
Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).
On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.
Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
4
IV.
DISABILITY ELIGIBILITY
“Disability” is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve months.”
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant will only be considered disabled if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is
5
“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§
404.1520(a)(4), -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his
limitations. §§ 404.1545(a)(1), 416.945(a)(1).
The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.
The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must
prove that there is work available in the national economy that the claimant could perform. Her
v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,
146 (1987)).
V.
ANALYSIS
Plaintiff contends that the ALJ’s RFC determination is not supported by substantial
evidence in two regards.
First, Plaintiff submits that the ALJ erroneously relied on the
interrogatory responses and opinion provided by medical expert Eric Puestow, M.D. [Doc. 17 at
19-22]. Second, Plaintiff maintains that her RFC does not properly reflect the limitations assessed
by consultative examiner Candace Blake, Psy.D., despite the ALJ’s assignment of great weight to
Dr. Blake’s opinion. [Id. at 23-24].
Opinions from non-treating, examining and non-examining medical and psychological
consultants are evaluated using the regulatory balancing factors set forth in 20 C.F.R. §
404.1527(c)(1)-(6). Specifically, “[t]he Commissioner [] weighs these opinions based on the
examining relationship (or lack thereof), specialization, consistency, and supportability, but only
if a treating-source opinion is not deemed controlling.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)). “Other factors ‘which tend to support
or contradict the opinion’ may be considered in assessing any type of medical opinion.” Id.
(quoting 20 C.F.R. § 404.1527(c)(6)).
6
The Court will address Plaintiff’s specific allegations of error in turn.
A.
Interrogatory Responses and Opinion of Medical Expert Eric Puestow, M.D.
Plaintiff avers that the ALJ’s reliance on Dr. Puestow’s interrogatory responses and
accompanied medical source statement was improper because the ALJ did not rule on the specific
objections by Plaintiff’s counsel during the supplemental administrative hearing, and the ALJ did
not properly weigh the regulatory balancing factors in assessing Dr. Puestow’s opinion.
Following the first administrative hearing, ALJ sent medical interrogatories and a medical
source statement to Dr. Puestow in order to obtain additional evidence of Plaintiff’s physical
impairments. [Tr. 629-37]. The ALJ proffered Dr. Puestow’s responses and medical source
statement to Plaintiff on July 24, 2015, as a proposed exhibit to the record. [Tr. 277-78]. At the
supplement hearing held on December 9, 2015, Plaintiff’s counsel argued that Dr. Puestow’s
opinion should be given little weight because his interrogatory responses were nonresponsive to
the questions asked, he failed to cite to any particular evidence to support his findings, and it was
unclear what evidence was sent for his review. [Tr. 46]. Plaintiff renews these objections before
the Court and submits that they were never properly addressed or ruled upon by the ALJ. [Doc.
17 at 20-21].
In the interrogatory responses, Dr. Puestow stated that he reviewed the evidence furnished
to him by the agency which was sufficient for him to form a medical opinion about the nature and
severity of Plaintiff’s impairments. [Tr. 629]. He then specified that Plaintiff’s impairments
included: (1) lumbar degenerative disc disease, (2) chronic headache disorder with normal exam
and imaging studies, (3) hypertension with no end organ damage-not severe, and (4) chronic use
of prescribed narcotics and sedatives [Id.]. Dr. Puestow concluded that none of Plaintiff’s
impairments met or equaled an impairment in the Listing of Impairments. [Tr. 630]. While the
7
interrogatories requested that Dr. Puestow cite with specificity to the objective medical evidence
that supported his conclusions, Dr. Puestow did not identify any specific evidence or medical
records and stated, “None close,” in response to why Plaintiff’s impairments did not meet a listing.
[Tr. 629-30].
Dr. Puestow then completed a medical source statement, wherein he opined that Plaintiff
had the following functional limitations in an eight-hour workday: Plaintiff could lift and carry
up to 10 pounds frequently and 11 to 20 pounds occasionally; she could stand and walk for three
hours at a time but four hours total, and she can sit for four hours at a time but eight hours total;
she could never climb ladders, ropes, or scaffolds, but she could occasionally perform all other
postural activities; and she would need to avoid all exposure to unprotected heights, but she could
tolerate occasional exposure to moving mechanical parts and could occasionally operate a motor
vehicle. [Tr. 632-36].
Plaintiff complains [Doc. 17 at 20-21] that the ALJ’s reliance on Dr. Puestow’s opinion
was error because the ALJ did not rule on the objections raised by counsel during the supplemental
hearing, and therefore, the ALJ failed to comply with Hearing, Appeals, and Litigation Law
Manual (“HALLEX”),2 I-2-5-44-1, 1994 WL 637377 (April 1, 2016), which states, “An ALJ must
rule on any objection or request by the claimant regarding the [medical expert’s] response to
2
The HALLEX manual “provides ‘guiding principles, procedural guidance and
information’ to adjudicators and staff of the Office of Hearings and Appeals.” Bowie v. Comm’r
of Soc. Sec., 539 F.3d 395, 397 (6th Cir. 2008) (quoting HALLEX I–1–0–1, 2005 WL 1863821,
at *1 (June 21, 2005)). The guidelines provided therein, however, are not binding on the courts.
Id. at 399. Moreover, and contrary to Plaintiff’s assertion that her procedural due process rights
were violated by the ALJ’s failure to comply with the guidance set forth in the HALLEX [Doc. 20
at 2], “HALLEX guidelines do not create procedural due process rights.” Beason v. Comm’r of
Soc. Sec., No. 1:13-CV-192, 2014 WL 4063380, at *9 (E.D. Tenn. Aug. 15, 2014) (citing
Lawrence v. Colvin, No. 3:13–032–DCR, 2014 WL 640990, at *4 (E.D. Ky. Feb.18, 2014)).
8
interrogatories” either “on the record during the hearing or in a writing that the ALJ exhibits and
associates with the record.”
The Court observes that the objections raised at the supplemental hearing were arguments
raised by Plaintiff’s counsel as to reasons why Dr. Puestow’s opinion was entitled to “little
weight.” [Tr. 46]. Counsel did not object to the admissibility of the opinion. [Tr. 32-33]. While
the ALJ did not respond to counsel’s argument at the hearing, nor did he recount counsel’s
arguments in his written decision, the ALJ did address Dr. Puestow’s opinion, assigned it “great
weight,” and concluded that the opinion was consistent with MRIs of Plaintiff’s lumbar spine and
written treatment notes that indicated medication controlled Plaintiff’s back pain. [Tr. 21]. By
assigning Dr. Puestow’s opinion great weight, the Court finds that the ALJ implicitly overruled
counsel’s arguments. The issue remains, however, whether substantial evidence supports the
ALJ’s assignment of great weight to Dr. Puestow’s opinion.
Plaintiff contends that Dr. Puestow’s failure to identify which evidence he relied upon in
making his findings, and the agency’s failure to comply with HALLEX I-2-5-44 by not including
the correspondence sent to Dr. Puestow with the interrogatories as an exhibit to the record,
undermines the supportability of Dr. Puestow’s opinion. [Doc. 17 at 20-21]. Candidly, the Court
observes that Dr. Puestow’s interrogatory responses were riddled with irregularities and agency
procedure was not textbook. First, Dr. Puestow did not provide full and complete responses to the
interrogatories in that he did not describe what specific evidence or medical records established
the existence of Plaintiff’s impairments. Dr. Puestow likewise did not cite to the specific evidence
he relied upon in concluding that Plaintiff’s impairments did not meet or equal a listing. Second,
the Court observes that HALLEX I-2-5-44 requires that a copy of the informational letter sent to
a medical expert, which accompanies and explains the request for interrogatory responses, is to be
9
included as an exhibit in the E section of the record. 1994 WL 637377 (April 1, 2016). Such letter
is absent from the record.
Even so, and in spite of these flaws, the Court finds substantial evidence supports Dr.
Puestow’s opinion because it is supported by and consistent with the record evidence, including
imaging studies, examination findings, diagnostic tests, or the other medical opinions of record.
See 20 C.F.R. § 404.1527(c)(3)-(4).
At step two of the sequential evaluation, the ALJ determined, in relevant part, that Plaintiff
had severe impairments of degenerative disc disease and migraine headaches and a nonsevere
impairment of hypertension—ailments in which Dr. Puestow likewise identified as medically
determinable impairments.
In making his step two finding, the ALJ provided a thorough
discussion of Plaintiff’s medical records that evidenced imaging studies of degenerative disc
disease and examination findings of reduced range of motion of the spine and tenderness in
Plaintiff’s lower back and hips with range of motion testing. [Tr. 16]. A consultative examination
performed by Jeffrey Summers, M.D., revealed similar findings in addition to normal range of
motion in all other joints, normal strength, normal grip strength, negative straight leg raise testing,
and no problems ambulating. [Tr. 16, 427-28]. As to Plaintiff’s migraine headaches, the ALJ
noted a history of treatment as well as imaging studies, the most current of which showed a few
tiny white matter gliosis presumably related to chronic small vessel change or migraine but no
evidence of an acute abnormality. [Tr. 17, 735]. Finally, with regard to Plaintiff’s nonsevere
hypertension, the ALJ noted that Plaintiff was treated for benign hypertension, which was
controlled with treatment. [Tr. 17, 640-55].
At step three, the ALJ considered Listing 1.04, disorders of the spine, but concluded that
Plaintiff did not meet the listing because as demonstrated by the MRIs of record, Plaintiff did not
10
have a nerve root compression characterized by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss, muscle atrophy, and positive straight leg raise testing. [Tr. 18];
see 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.04A (explaining the requisite criteria that must be
satisfied to meet or equal the listing). Accordingly, the Court finds that Dr. Puestow’s findings
regarding Plaintiff’s impairments and their severity are consistent with and supported by the
medical evidence of record. Significantly, Plaintiff cites to no errors committed at steps two or
three, such as that she suffers from additional impairments, that impairments found nonsevere
cause more than a minimal effect on her work abilities, or that she meets or equals a listing.
As to Plaintiff’s RFC, at which step she argues is more adversely affected by the ALJ’s
flawed consideration of Dr. Puestow’s opinion, the ALJ observed that Plaintiff’s medication
generally controlled her back pain, and Plaintiff reported no side effects. [Tr. 20, 591]. The ALJ
also reiterated Dr. Summers’s examination findings which, in addition to those noted above,
document an ability to heel walk, toe walk, and perform one-leg stands without difficulty. [Tr. 20,
428]. The ALJ further noted contradictions among Plaintiff’s testimony. While Plaintiff testified
she did not do any household chores and relied on her husband and children daily, a treatment note
recounted that Plaintiff had sustained a rash after pulling weeds from her garden over the weekend.
[Tr. 20, 606].
Similarly, Plaintiff testified that her stomach problems caused her to have
“accidents” and she had to use the restroom up to 10 times per day, but treatment notes document
reported one to two bowel movements per day. [Tr. 20, 642].
As to the opinion evidence of record, Dr. Summers opined Plaintiff would have difficulty
performing postural activities and lifting greater than 20 pounds but that she retained the ability to
work from a seated position for eight hours in a workday with full and unrestricted use of her upper
extremities and could operate hand and foot controls. [Tr. 20, 428]. The non-examining state
11
agency physicians, at both the initial and reconsideration levels, opined findings consistent with
light work. [Tr. 21, 73-74, 90-91]. The ALJ assigned the foregoing opinions “some weight,”
concluding that Plaintiff was slightly more restricted in that she required the ability to alternate
between sitting and standing as she could not perform either for a continuous period of eight hours,
and she must avoid work hazards, ladders, ropes and scaffolds. [Tr. 20-21].
As with steps two and three, the Court likewise finds that the functional limitations assessed
by Dr. Puestow are consistent with and supported by the medical evidence and opinions of record,
and Plaintiff, again, fails to cite to any specific, contrary medical evidence, examining findings, or
opinions that contradict the limitations assessed by Dr. Puestow and incorporated into Plaintiff’s
RFC.3 Rather, Plaintiff suggests that later generated evidence, including an MRI of Plaintiff’s
brain and back, submitted after Dr. Puestow rendered his opinion “could” or “may” impact his
responses. [Doc. 17 at 22]. Plaintiff’s idle hope, without more, is insufficient to find error by the
ALJ. See Kelly v. Comm’r of Soc. Sec., 314 F. App’x 827, 831 (6th Cir. 2009) (“[A]bsent a clear
showing that the new evidence renders the prior opinion untenable, the mere fact that a gap exists
does not warrant the expense and delay of a judicial remand.”). “When an ALJ relies on a [medical]
source who did not have the opportunity to review later submitted medical evidence,” our appellate
court “require[s] some indication that the ALJ at least considered these [new] facts before giving
greater weight to an opinion that is not based on a review of a complete case record.” Brooks v.
Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (internal citations and quotation marks
3
The Court notes that the record does include an “Attending Physician’s Statement”
completed by Jennifer Strange, FNPBC, wherein Ms. Strange opined that Plaintiff was disabled
and unable to work. [Tr. 462]. Opinions that express such conclusions are not considered “medical
opinions” and are not offered any special significance as they invade the Commissioner’s exclusive
role in determining disability. 20 C.F.R. § 404.927(d)(1), -(3).
12
omitted). Here, the ALJ considered Plaintiff’s later submitted imaging studies, as well as other
treatment notes submitted after Dr. Puestow rendered her opinion, in assessing the severity and
functional effect of Plaintiff’s impairments. [Tr. 17, 20].
Case law is clear that “an agency’s violation of its procedural rules will not result in
reversible error absent a showing that the claimant has been prejudiced on the merits or deprived
of substantial rights because of the agency’s procedural lapses.” Wilson, 378 F.3d at 546–47
(quoting Connor v. United States Civil Serv. Comm’n, 721 F.2d 1054, 1056 (6th Cir. 1983)). The
Court concludes that Plaintiff has not carried her burden in this regard. Accordingly, the Court
finds that substantial evidence supports the assignment of great weight to Dr. Puestow’s opinion,
and Plaintiff’s contention to the contrary is without merit.
B.
Consultative Examiner Candace Blake, Psy.D.
Plaintiff also argues that the ALJ’s RFC determination does not accurately reflect the social
limitations assessed by Dr. Blake.
Dr. Blake performed a consultative examination on July 13, 2013, wherein she opined that
Plaintiff had moderate limitations in her ability to understand and remember, concentrate and
persist, and adapt to change, and she had a marked limitation in social interactions. [Tr. 422]. The
ALJ’s decision assigned “great weight” to Dr. Blake’s opinion. [Tr. 20]. The ALJ concluded that
the opinion was consistent with Plaintiff’s mental health treatment records which demonstrated
that Plaintiff’s medications were effective and that her global assessment of functioning scores
were generally at or close to a 60.4 [Id.].
4
A global assessment of functioning score between 51 and 60 indicates moderate
symptoms or moderate difficulty in social or occupational functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 34, 4th ed. (revised) 2000.
13
Plaintiff argues that despite purporting to give great weight to Dr. Blake’s opinion, the
ALJ’s RFC determination does not adequately reflect Dr. Blake’s marked limitation in social
interactions. [Doc. 17 at 23]. In other words, Plaintiff argues that her RFC, which limits her to
(1) occasional, casual, and superficial interaction with coworkers and the public and (2) direct,
non-confrontational supervision (i.e., no special supervision), does not convey a marked limitation
in social interactions, which would limit her to less than occasional interaction with coworkers
and supervisors. [See id.].
The Court disagrees with Plaintiff’s contention and finds that
substantial evidence supports the social limitations incorporated into Plaintiff’s RFC.
As an initial matter, the Court notes that when an ALJ fails to incorporate all of the
limitations opined from a medical source who received great weight, “it does not follow that the
ALJ’s explanation is, therefore, procedurally inadequate, or that the RFC was not supported by
substantial evidence.” Moore v. Comm’r of Soc. Sec., No. 1:13-CV-00395, 2013 WL 6283681, at
*7 (N.D. Ohio Dec. 4, 2013); see Purtty v. Comm’r of Soc. Sec. Admin., No. 1:13 CV 1204, 2014
WL 3510991, at *9 (N.D. Ohio July 10, 2014) (“[A]n ALJ is not required to explain each limitation
or restriction he adopts or, conversely, does not adopt from a consultative examiner’s opinion.
While an ALJ must consider medical opinions, the RFC determination is expressly reserved to the
Commissioner.”) (citations omitted); Newsome v. Astrue, No. CIV. 11-1141-CJP, 2012 WL
2922717, at *6 (S.D. Ill. July 17, 2012) (rejecting the plaintiff’s argument that by giving great
weight to a consultative examiner’s opinion, the RFC assessment should have perfectly tracked
the examiner’s opinion).
However, in this case, the Court finds that Plaintiff’s RFC did incorporate Dr. Blake’s
marked limitation in social interactions. Plaintiff summarily concludes that a marked limitation in
social interactions means that she could only have less than occasional interaction with coworkers
14
and supervisors. Plaintiff’s contention is not supported by case law. Shinlever v. Berryhill, No.
3:15-CV-371-CCS, 2017 WL 2937607, at *6 (E.D. Tenn. July 10, 2017) (“Substantial evidence
supports a finding that interacting with co-workers and supervisors on an occasional basis—that
is, very little up to one-third of the workday, Soc. Sec. Rul. 83-10, 1983 WL 31251, at *5 (Jan. 1,
1983)—and no interaction with the public accommodates the Plaintiff’s ‘marked’ limitation.”);
Miller v. Colvin, No. 3:15-CV-294-DW, 2016 WL 154127, at *8-9 (W.D. Ky. Jan. 12, 2016)
(finding an RFC that limited the plaintiff to “no interaction with the general public and only
occasional, but superficial, interaction with co-workers and supervisors combined with no close
tandem work” properly accounted for the plaintiff’s marked limitation in social functioning);
Libertore v. Comm’r of Soc. Sec., No. 5:11 CV 1245, 2012 WL 3815622, at *11 (N.D. Ohio July
26, 2012) (“To the contrary, a restriction to jobs without arbitration, confrontation, or negotiation,
and further involving only superficial interpersonal interaction with the public or co-workers, is a
significant enough limitation to sufficiently accommodate for Claimant’s marked social
functioning difficulties.”), adopted sub nom., Libertore v. Astrue, No. 5:11 CV 1245, 2012 WL
3815626 (N.D. Ohio Sept. 4, 2012).
As explained in Shinlever, while agency rulings define a “marked limitation” as a
“substantial loss of ability,” a “‘[s]ubstantial loss’ cannot be precisely defined” because “[i]t does
not necessarily relate to any particular adjective, number, or percentage.” 2017 WL 2937607, at
*6 (quoting Soc. Sec. Rul. 96-9-p, 1996 WL 374185, at *9 (July 2, 1996); Soc. Sec. Ru. 85-15,
1985 WL 56857, at *4 (Jan. 1, 1985); and Program Operation Manual System DI. 25020.010.A.3.
Mental Limitations). Therefore, a marked limitation is not synonymous with a specific functional
restriction or RFC. As such, the Court finds that Plaintiff has not demonstrated why an RFC of
occasional interaction with coworkers and the public, and direct, non-confrontational supervision,
15
fails to accommodate Plaintiff’s marked limitation in social interactions.
The Court is likewise unpersuaded by Plaintiff’s additional argument that the opinion of
Plaintiff’s treating therapist, Katherine Bentley-Knowles, APN, PMHNP-BC, demonstrates
greater limitations in social interactions than incorporated into the RFC [Doc. 23 at 17], as Ms.
Bentley-Knowles assessed that Plaintiff was not significantly limited-to-moderately limited in
social interactions [Tr. 464].
Accordingly, the Court finds the ALJ properly considered Dr. Blake’s opinion, and
substantial evidence supports the social interaction limitations included in Plaintiff’s RFC.
VI.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Summary Judgment [Doc. 16] will be
DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 18] will be GRANTED.
The Commissioner’s decision will be AFFIRMED. The Clerk of Court will be directed to
CLOSE this case.
ORDER ACCORDINGLY.
__ _________________________
Debra C. Poplin
United States Magistrate Judge
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?