United States District Court, S.D. Ohio, Eastern Division
MARY J. SARVINO, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
L. Graham Judge.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Mary J. Sarvino, brings this action under 42 U.S.C.
§§ 405(g) and 1383(c)(3) for review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for a
period of disability and disability insurance benefits
(“DIB”). For the reasons that follow, it is
RECOMMENDED that the Court REVERSE the Commissioner's
nondisability finding and REMAND this case to the
Commissioner and Administrative Law Judge (“ALJ”)
under Sentence Four of § 405(g).
applied for a period of disability and DIB on March 5, 2013,
alleging disability beginning January 16, 2013 at the age of
fifty-six, due to numerous physical and mental impairments.
(Doc. 11-2, Tr. 13 at PAGEID #: 54). Her application was
denied initially on September 23, 2013, and upon
reconsideration on December 10, 2013. (Id.). An
Administrative Law Judge (the “ALJ”) held a
hearing on March 10, 2015, after which she denied benefits in
a written decision on May 14, 2015. (Id.). That
decision became final when the Appeals Council denied review
on June 22, 2016. (Id., Tr. 2, PAGEID #: 43).
Plaintiff filed this case on August 16, 2016 (Doc. 1), and
the Commissioner filed the administrative record on November
21, 2016 (Doc. 11). Plaintiff filed a Statement of Specific
Errors on January 5, 2017, and requested oral argument. (Doc.
12). The Commissioner responded on February 21, 2017 (Doc.
13), and Plaintiff replied on March 7, 2017 (Doc. 14). In
response to Plaintiff's request, the Court held oral
argument on March 28, 2017. (See Doc. 20).
Relevant Hearing Testimony
the hearing before the ALJ, Plaintiff testified that she had
worked as a “heavy handler of packages. . . .”
(Doc. 11-2, Tr. 47 at PAGEID #: 89). She indicated that
“[m]ost of [her] jobs were labor-like jobs, ”
which involved dealing with trays of mail, pulling carts, and
shipping. (Id.). However, for three years, she
worked at a “sit-down job” doing
“correspondence-type work.” (Id., Tr. 48
at PAGEID #: 90). As to her mental health, Plaintiff
testified that she has difficulty with her memory, which has
worsened over time. (Id., Tr. 61 at PAGEID #: 103).
Richard Oestreich testified as the vocational expert
(“VE”). (Id., Tr. 69 at PAGEID #: 111).
He stated that Plaintiff had past relevant work as a shipping
and receiving clerk (SVP 5, skilled and medium), and as a
mail sorter (SVP 2, sedentary and unskilled). (Id.,
Tr. 70-71 at PAGEID #: 112-13).
first asked if an individual with Plaintiff's residual
functional capacity (“RFC”) could perform past
relevant work as a shipping and receiving clerk or as a mail
sorter, he responded “I don't think so.”
(Id., Tr. 72 at PAGEID #: 114). He elaborated that
she could not perform such work because “there's
too much verbal in both . . . it's about understanding
the words and being able to find out from someone else what
the words might mean.” (Id.). However, when
the ALJ clarified that the communication limitation she
proposed related to “the ability to actually speak,
” the VE changed his testimony, stating “[t]hen I
think she can do that work, your honor.”
(Id.). But the VE equivocated, testifying that if
the mail sorter job had production quotas, Plaintiff
“certainly couldn't do it.” (Id.,
Tr. 73 at PAGEID #: 115).
then asked the VE if a hypothetical individual with
Plaintiff's RFC and age, education, and work history
could perform other work. (Id., Tr. 74 at PAGEID #:
116). The VE testified that she could and provided the
First would be cleaner, 381.687-014, it's medium and
unskilled, there'd be about 500 in her area that she
could do, that's central Ohio, about 20, 000 in the
state, and 200, 000 nationally. Inspector, 589.686-038, about
450 in her area, 18, 000 in the state, and 250, 000
nationally. Hand packager, 920.587-018, 600 in her area, 16,
000 in the state, and 150, 000 nationally.
(Id.). The VE testified that the job numbers he
provided were “usually from the Bureau of Labor
Statistics or derivatives of that.” (Id., Tr.
81 at PAGEID #: 123).
Relevant Medical Background
relevant medical evidence consists of reports from
consultative examiner Dr. Kent Rowland, Ph.D. and evaluating
neurologist Philip Rick Whatley, Ph.D. In a Disability
Assessment Report, Dr. Rowland stated that Plaintiff obtained
a Full-Scale IQ score of 79, which placed her in the eighth
percentile and in the borderline range. (Doc. 11-7, Tr. 397
at PAGEID #: 445). He compared Plaintiff's borderline IQ
score to her average Wechsler Memory Scale-Fourth Edition
(“WMS”) scores, noting that her “WMS scores
were significantly higher than would be expected given her
Full Scale IQ score of 79.” (Id., Tr. 398 at
PAGEID #: 446). Dr. Rowland concluded that the disparity
between Plaintiff's IQ score and her WMS scores is
suggestive of a cognitive impairment of a general type, which
is “impacting . . . her general abilities to reason and
calculate.” (Id.). Noting that Plaintiff
“evidenced significant difficulties focusing attention
and concentration throughout the interview and testing,
” Dr. Rowland opined that she “can be expected to
struggle to understand and apply instructions in a work
setting” and “may have periodic and erratic
performance on multi-step tasks.” (Id., Tr.
399 at PAGEID #: 447; see also id. (finding also
that Plaintiff may have “limitations in her ability to
conform to social expectations in a work setting” based
on her “depressed mood”).
with Dr. Rowland's findings, Dr. Whatley found
Plaintiff's Full-Scale IQ score was in the borderline
range and her WMS scores were in the average range.
(Id., Tr. 540- 41 at PAGEID #: 588-89). Dr. Whatley
speculated initially that Plaintiff's memory loss was
“secondary to her psychiatric/psychological/stress
factors, ” but he conducted a comprehensive
neuropsychological evaluation consisting of sixteen tests to
obtain additional information. (Id., Tr. 538, 545-46
at PAGEID #: 586, 593-94). Dr. Whatley's impression upon
testing was that Plaintiff's “protocol is most
consistent with pseudodementia secondary to severe
psychiatric illness.” (Id., Tr. 546 at PAGEID
#: 594; see also id. (noting Plaintiff's poor
performance on measures of symptom validity/effort was likely
due to “psychiatric factors rather than malingering
per se”)). Among other recommendations, ...