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Sarvino v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

April 7, 2017

MARY J. SARVINO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          James L. Graham Judge.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).

         I. BACKGROUND

         A. Procedural History

         Plaintiff 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).

         B. Relevant Hearing Testimony

         During 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).

         Dr. 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).

         When 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).

         The ALJ 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 following examples:

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).

         C. Relevant Medical Background

         The 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”).

         Consistent 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, ...


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