Dorsey v. Social Security Administration, Commissioner of (RLJ2)
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge H Bruce Guyton on 3/12/19. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CHRISTOPHER E. DORSEY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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No. 3:18-cv-103-HBG
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 are
Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 16 & 17] and
Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 18 & 19].
Plaintiff has also filed a Reply to Defendant’s Motion for Summary Judgment [Doc. 20].
Christopher E. Dorsey (“Plaintiff”) seeks judicial review of the decision of the Administrative Law
Judge (“the ALJ”), the final decision of Defendant Nancy A. Berryhill (“the Commissioner”). For
the reasons that follow, the Court will DENY Plaintiff’s motion and GRANT the Commissioner’s
motion.
I.
PROCEDURAL HISTORY
On June 8, 2015, Plaintiff filed an application for supplemental security income benefits
pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., claiming a period of
disability that began on April 15, 2015. [Tr. 13, 159–64]. After his application was denied initially
and upon reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 96]. A hearing was
held on April 26, 2017. [Tr. 29–57]. On May 25, 2017, the ALJ found that Plaintiff was not
disabled. [Tr. 15–24]. The Appeals Council denied Plaintiff’s request for review on February 7,
2018 [Tr. 1–6], making the ALJ’s decision the final decision of the Commissioner.
Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court
on March 13, 2018, seeking judicial review of the Commissioner’s final decision under Section
405(g) of the Social Security Act. [Doc. 2]. 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 has not engaged in substantial gainful activity since
June 8, 2015, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: obesity,
affective disorder, posttraumatic stress disorder, paranoid
personality disorder, and borderline intellectual functioning (20
CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 416.967(c) except
limited to simple routine repetitive tasks; performed in a work
environment free of fast paced work involving only simple work
related decisions, and with few, if any, workplace changes; no
interaction with the public; only occasional interaction with
coworkers and supervisors; and no complex written or verbal
communication required.
5. The claimant is unable to perform any past relevant work (20
CFR 416.965).
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6. The claimant was born on March 21, 1967 and was 48 years old,
which is defined as a younger individual age 18–49 on the date the
application was filed. The claimant subsequently changed age
category to closely approaching advanced age (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate
in English (20 CFR 416.964).
8. 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).
9. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 416.969, and 416.969(a)).
10. The claimant has not been under a disability, as defined in the
Social Security Act, since June 8, 2015, the date the application was
filed (20 CFR 416.920(g)).
[Tr. 17–23].
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.”
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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).
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) and 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.
§§ 423(d)(2)(A) and 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.
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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
“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§
404.1520(a)(4), -(e) and 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his
limitations. §§ 404.1545(a)(1) and 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, as he claims that the RFC does not properly reflect the limitations assessed by
consultative psychological examiner Kathryn Smith, Ph.D., despite the ALJ’s assignment of
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significant weight to Dr. Smith’s opinion. [Doc. 17 at 10–14]. Plaintiff contends that Dr. Smith’s
opinion that Plaintiff had a marked limitation in his ability to interact with people does not support
the RFC finding that Plaintiff could interact occasionally with coworkers and supervisors. [Id. at
11].
Therefore, Plaintiff challenges “[t]he ALJ’s decision to disregard Dr. Smith’s opinion
regarding [Plaintiff’s] mental health limitation on his ability to interact with people based on his
‘admitted daily activities and his interactions with his healthcare providers,’’” as the ALJ does not
identify specific daily activities or interactions with health care providers, and that Plaintiff’s
“interactions with his healthcare providers provide no support for the [ALJ’s conclusion] that he
could occasionally interact with coworkers and supervisors.” [Id. at 11, 13].
However, the Commissioner maintains that the ALJ properly considered the record as a
whole to find that Plaintiff could occasionally interact with coworkers and supervisors. [Doc. 19
at 13]. The Commissioner also noted that the ALJ found Plaintiff’s allegations inconsistent with
the record as a whole, considered Plaintiff’s daily activities and level of treatment, and reviewed
Plaintiff’s appropriate behavior while interacting with medical providers.
[Id. at 13–18].
However, Plaintiff replied that the ALJ did not specifically state what daily activities or
interactions with medical providers were in contrast with Dr. Smith’s opined limitations. [Doc.
20 at 1–2].
Dr. Smith consultatively examined Plaintiff on July 24, 2015. [Tr. 301–06]. Dr. Smith
performed a clinical interview with mental status exam, as well as administered IQ testing through
the Wechsler Adult Intelligence Scale-IV (“WAIS”) and the Wide Range Achievement Test-IV
(“WRAT”). [Tr. 301]. Plaintiff reported anger problems and a history of mental problems
stemming from child abuse, but that he had not received any mental health treatment. [Id.].
Testing through the WAIS revealed a Verbal Comprehension score of 66, a Perceptual Reasoning
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score of 86, a Working Memory score of 77, a Processing Speed score of 79, and a Full Scale IQ
of 72. [Tr. 304]. Dr. Smith noted that these scores were in the extremely low to low average
range. [Id.]. On the WRAT, Plaintiff obtained scores of a 7.4 grade level in Word Reading, a 6.2
grade level in Sentence Comprehension, and 4.0 grade level in Spelling, and 5.6 grade level in
Math Computation. [Id.].
Dr. Smith diagnosed Plaintiff with major depressive disorder, chronic moderate; paranoid
personality disorder; borderline intellectual functioning; and cannabis use disorder, early
remission. [Tr. 305]. Accordingly, Dr. Smith opined mild to moderate limitations in the ability to
understand, remember, and carry out simple instructions; moderate to marked limitations in the
ability for complex instructions; mild limitations in the ability to make simple judgments; moderate
limitations in the ability for complex judgments; moderate limitations in the ability to sustain
concentration and persist; marked limitations in the ability to interact appropriately with others;
and moderate limitations in the ability to adapt to changes and requirements. [Id.].
The ALJ reviewed Dr. Smith’s opinion in great length [Tr. 21], and ultimately assigned
significant weight to her opinion [Tr. 21–22]. However, the ALJ specifically noted that he found
that Plaintiff has the ability to interact occasionally with coworkers and supervisors based on
Plaintiff’s admitted daily activities and interactions with health care providers. [Tr. 22]. Plaintiff
challenges this finding, as the ALJ did not identify what daily activities or interactions with health
care providers supported his reasons, and it was in contrast to Dr. Smith’s opinion—which the ALJ
assigned significant weight to. [Doc. 17 at 10–13].
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
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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 Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 275 (6th Cir.
2015) (“Even where an ALJ provides “great weight” to an opinion, there is no requirement that an
ALJ adopt a state agency psychologist’s opinions verbatim; nor is the ALJ required to adopt the
state agency psychologist’s limitations wholesale.”) (citing Harris v. Comm’r of Soc. Sec. Admin.,
No. 1:13–cv–00260, 2014 WL 346287, at *11 (N.D. Ohio Jan. 30, 2014)).
Dr. Smith did not opine that Plaintiff was unable to have any interactions with coworkers
and supervisors. Nor did she assess a functional limitation regarding Plaintiff’s ability to so
interact. Rather, Dr. Smith found that Plaintiff, generally, had a marked limitation in social
interaction. This Court recently addressed a similar argument and found that “a marked limitation
is not synonymous with a specific functional restriction or RFC.” Haggard v. Berryhill, No. 3:17CV-99-DCP, 2018 WL 6003862, at *8 (E.D. Tenn. Nov. 15, 2018) (finding that Plaintiff “has not
demonstrated why an RFC of occasional interaction with coworkers and the public, and direct,
non-confrontational supervision, fails to accommodate Plaintiff’s marked limitation in social
interactions”). In Haggard, the Court addressed Plaintiff’s argument that despite giving great
weight to a consultative examiner’s opinion, which included an assessed marked limitation in
social interaction, the ALJ improperly limited Plaintiff’s RFC to only occasional interaction with
coworkers and the public with direct, non-confrontational supervision. Id. at *7. 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.” Shinlever v. Berryhill, No. 3:15-CV-371-CCS, 2017 WL 2937607, at *6 (E.D.
Tenn. July 10, 2017) (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.
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25020.010.A.3. Mental Limitations).
Therefore, Plaintiff “summarily concludes that a marked limitation in social interactions
means that she could only have less than occasional interaction with coworkers and supervisors.”
Haggard, 2018 WL 6003862, at *7; see, e.g., Shinlever, 2017 WL 2937607, at *6 (“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).
Moreover, in the present case, the ALJ did detail why Plaintiff could interact occasionally
with coworkers and supervisors, despite giving significant weight to Dr. Smith’s opinion,
including her assessment that Plaintiff had a marked limitation in his ability to interact with people.
[Tr. 22]. While Plaintiff claims that the ALJ failed to identify which specific daily activities
supported his finding, the ALJ reviewed Plaintiff’s daily activities throughout the opinion.
Specifically, directly before considering Dr. Smith’s opinion, the ALJ discussed how Plaintiff
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reported the ability to shop in stores, talk with his brother, use public transportation, attend doctors’
appointments, and go out alone. [Tr. 21].
Additionally, the ALJ stated that Plaintiff’s ability to interact occasionally with coworkers
and supervisors was supported by his interactions with his health care providers. [Tr. 22]. Plaintiff
correctly states that the ALJ did not detail specific interactions with medical providers. Plaintiff
challenges the overall use of his interactions with healthcare providers as being indicative of his
ability to interact with coworkers and supervisors. [Doc. 17 at 11–13]. The Court cautions against
the use of a claimant’s interactions with healthcare providers when assessing the capability to
interact appropriately with coworkers and supervisors. See Daugherty v. Comm’r of Soc. Sec., No.
1:16-cv-898, 2017 WL 3987867, at *8 (S.D. Ohio July 20, 2017) (finding error in an ALJ’s failure
to include a specific limitation from examining consultant’s opinion, as “long term familial
relationships that predate Plaintiff’s alleged disability, or relationships with her medical providers,
are not equivalent to the type of social interactions that Plaintiff would encounter in the
workplace”), report and recommendation adopted by, 2017 WL 3965326 (S.D. Ohio Sept. 8,
2017); see, e.g., Castrovianci v. Comm’r of Soc. Sec., No. 2:17-cv-179, 2018 WL 4100956, at *10
(M.D. Fla. Aug. 2, 2018) (“The ALJ also cited Plaintiff’s interactions with his medical providers
in discounting greater than moderate limitations, as detailed above . . . This suggests the opposite
conclusion; Plaintiff may have only had social difficulties in the workplace.”), report and
recommendation adopted by, 2018 WL 5084661 (M.D. Fla. Aug. 28, 2018).
However, in the present case, the ALJ’s RFC determination is supported by substantial
evidence, as Dr. Smith did not assess a specific limitation with respect to Plaintiff’s social
interaction. Cf. Daugherty, 2017 WL 3987867, at *8. Additionally, the ALJ did “incorporate [Dr.
Smith’s] marked limitation in social interactions” through the RFC including simple, routine and
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repetitive tasks in an environment free of fast paced work, no interaction with the public, and only
occasional interaction with coworkers and supervisors. See Haggard v. Berryhill, No. 3:17-CV99-DCP, 2018 WL 6003862, at *8 (E.D. Tenn. Nov. 15, 2018). Lastly, the ALJ discussed
Plaintiff’s daily activities and assigned significant weight to the opinions of the nonexamining
state agency physicians, Rebecca Joslin Ed.D. and P. Jeffrey Wright Ph.D., while noting that
although they used the old paragraph B criteria, their opinions supported the RFC determination.
[Tr. 22]. Dr. Joslin and Dr. Wright opined that Plaintiff was moderately limited in the ability to
interact appropriately with supervisors and coworkers. [Tr. 65, 79]; see Lynette P. v. Soc. Sec.
Admin., No. 1:17-cv-311-JDL, 2018 WL 2219085, at *4 (D. Me. May, 15 2018) (holding that the
ALJ’s finding that the plaintiff could interact appropriately with supervisors and coworkers was
supported by substantial evidence, as the ALJ assigned great weight to the opinions of the
nonexamining state agency physicians, and pointed to “Plaintiff’s ability to maintain friendships,
communicate effectively with others (notably care providers), the lack of any report in the
treatment records of an impairment related to speech or communication, and Plaintiff’s ability to
use public transportation when necessary to support his conclusion”), report and recommendation
adopted by, 2018 WL 3212005 (D. Me. June 29, 2018).
Accordingly, the Court finds that the ALJ’s RFC determination is supported by substantial
evidence, and Plaintiff’s allegation of error does not constitute a basis for remand.
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V.
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 decision of the Commissioner will be AFFIRMED. The Clerk of Court will be DIRECTED
to close this case.
ORDER ACCORDINGLY.
United States Magistrate Judge
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