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Kise v. Commissioner of Social Security

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

May 16, 2017

Tamara L. Kise, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          James L. Graham United States District Judge

         Plaintiff Tamara L. Kise brings this action under 42 U.S.C. §405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits and supplemental security income. The administrative law judge (“ALJ”) reviewed the evidence in the record and held two hearings. In a decision dated November 10, 2014, the ALJ found that plaintiff had severe impairments consisting of degenerative disk disease, hypertension, left knee pain with possible degenerative changes, obesity, bereavement disorder, generalized anxiety disorder, panic disorder, and bipolar disorder. PAGEID 55. After considering the entire record, the ALJ found that plaintiff has the residual functional capacity (“RFC”) to perform work with some physical limitations, and that she was “able to perform simple routine tasks in a low stress environment, which is defined in this case as requiring only occasional interaction with others and work with no strict production quotas or time pressures.” PAGEID 59. Citing the testimony of the vocational expert, the ALJ concluded that there were jobs in the economy which plaintiff could perform, and that she was not disabled. PAGEID 66-67.

         This matter is before the court for consideration of plaintiff's April 28, 2017, objections (Doc. 18) in response to the April 14, 2017, report and recommendation of the magistrate judge (Doc. 17), recommending that the decision of the Commissioner be affirmed. Plaintiff's objections concern the ALJ's consideration of evidence relevant to plaintiff's mental disabilities.

         I. Standard of Review

         If a party objects within the allotted time to a report and recommendation, the court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         The court's review “is limited to determining whether the Commissioner's decision ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also, 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”). A reviewing court will affirm the Commissioner's decision if it is based on substantial evidence, even if substantial evidence would also have supported the opposite conclusion. Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). “Substantial evidence exists when ‘a reasonable mind could accept the evidence as adequate to support a conclusion [and] . . . presupposes that there is a zone of choice within which the decision-makers can go either way, without interference by the courts.'” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation omitted). Even if supported by substantial evidence, however, “‘a decision of the Commissioner will not be upheld where the [Commissioner] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         II. Objections

         A. ALJ's Consideration of Dr. Donaldson's Report

         Plaintiff noted below that the ALJ assigned great weight to the opinion of Dr. Scott L. Donaldson, Ph.D., who conducted a consultative evaluation of plaintiff on April 26, 2012. See PAGEID 63. Plaintiff argued that there were significant inconsistencies between Dr. Donaldson's report, Exhibit 6F, and the RFC which were not addressed by the ALJ. Plaintiff contended that because of this omission, the RFC was not supported by substantial evidence, and she argued that the case should be remanded to require the ALJ to explain how he reconciled these inconsistencies.

         The magistrate judge correctly observed that the findings in Dr. Donaldson's report were not necessarily inconsistent with the RFC. As the magistrate judge noted, the ALJ's decision to give Dr. Donaldson's report great weight did not constitute a blanket acceptance of that report. The ALJ's decision indicates that she did not accept every finding made by Dr. Donaldson, most notably, the Global Assessment of Function (“GAF”) score of 45. See Doc.17, p. 10; PAGEID 64-65. Rather, the ALJ stated that the mental limitations in the RFC “generally accept and adopt the opinion of Dr. Donaldson.” See PAGEID 63 (emphasis supplied).

         This court is unaware of any authority which would require the language of the RFC to exactly mirror the language of the expert reports upon which the RFC is based. The fact that the wording of the RFC does not include the precise language in Dr. Donaldson's report does not mean that the two are inconsistent, and Dr. Donaldson's somewhat tentatively phrased conclusions do not clearly conflict with the RFC. For example, Dr. Donaldson stated that plaintiff's attention, concentration, persistence and pace in order to perform simple and multi-step tasks “may be limited by symptoms of anxiety, bipolar, bereavement and panic disorders” and that her “chronic pain and fatigue are likely to exacerbate attentional and concentration difficulties.” PAGEID 512 (emphasis supplied). See also PAGEID 510 (“based on psychological components of chronic pain and fatigue, her ability to focus and sustain her attention may be limited”)(emphasis supplied); PAGEID 512 (plaintiff's “ability to respond appropriately to work pressures in the work setting may be limited”)(emphasis supplied). However, as the magistrate correctly noted, Dr. Donaldson did not opine that plaintiff could not carry out simple or multi-step tasks, nor did he suggest any workplace accommodations or restrictions which might reduce or eliminate the difficulties he identified. Doc. 17, p. 10. The RFC restrictions limiting plaintiff to “simple routine tasks in a low stress environment” and “work with no strict production quotas or time pressures” adequately addressed the impairments discussed in Dr. Donaldson's report. Dr. Donaldson also noted that plaintiff's “ability to respond appropriately to supervisors and co-workers may be limited.” PAGEID 512 (Emphasis supplied). The restriction in the RFC which limits plaintiff to “only occasional interaction with others” accommodates this concern.

         Plaintiff also argues that the impairments discussed in the May 21, 2012, and October 26, 2012, opinions of state agency consultants Mary K. Hall, Ph.D and Deryck Richardson, Ph.D. are inconsistent with Dr. Donaldson's report. See Exs. 1A and 5A. The ALJ, at PAGEID 63, accorded great weight to the opinions of the state agency consultants. The state agency consultants also reviewed Dr. Donaldson's report and assigned it great weight. See PAGEID 147, 179. Although they expressed their view of plaintiff's mental limitations in slightly different terms than those contained in Dr. Donaldson's report, those limitations were not inconsistent. See, e.g., PAGEID 149-150 (noting that plaintiff's mental conditions would likely limit her concentration, persistence and pace and be increased by work stress, that plaintiff should work in a static environment in a small group setting or by herself, and that her interaction with others not include conflict resolution); PAGEID 181 (plaintiff can perform 1- to 4-step tasks with no multitasking or rapid task completion).

         Insofar as plaintiff argues that the ALJ's decision should have included a detailed discussion of all of the findings in Dr. Donaldson's report, the magistrate judge correctly concluded that the degree of specificity demanded by plaintiff is not required. Because Dr. Donaldson was a consultative examiner, the ALJ was not obligated to give “good reasons” for the weight assigned to his opinion. Ealy, 594 F.3d at 514; Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). A formulaic recitation of factors is not required. See Friend v. Comm'r of Soc. Sec., 375 F.App'x 543, 551 (6th Cir. 2010). An ALJ's failure to cite specific evidence does not indicate that it was not considered. Simo ...


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