Mitchell v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Pamela Lynn Mitchell,

Plaintiff,

v. Case No. 2:19-cv-4973

Commissioner of

Social Security,

Defendant.

OPINION AND ORDER

Plaintiff, Pamela Lynn Mitchell, brings this action under 42

U.S.C. §405(g) for review of the final decision of the Commissioner

of Social Security (“Commissioner”) denying her application for

supplemental security income. In a decision dated August 1, 2018,

the administrative law judge (“ALJ”) found that plaintiff had

severe impairments consisting of right knee degenerative joint

disease, history of coronary artery disease, and depressive,

intellectual, anxiety and neurodevelopmental disorders. PAGEID 59.

Only the plaintiff’s mental capacity is at issue in this case. The

ALJ found that plaintiff’s residual functional capacity (“RFC”)

would permit her to perform medium work with physical limitations.

PAGEID 68-69. The RFC further provides:

Mentally, the claimant retains the capacity to perform

simple routine tasks with few detailed instructions and

where changes are introduced slowly and well explained.

She is limited to understanding simple oral instructions,

and all instructions must be given orally. She is

limited to work with no more than occasional changes in

work setting and decision making required. She is

limited to goal based work measured by end result, with

no production rate pace work, high or strict production

quotas, and piece rate work.

PAGEID 69. Relying on the testimony of a vocational expert (“VE”),

the ALJ decided that there were jobs which plaintiff could perform

and that plaintiff was not disabled. PAGEID 77-78.

This matter is before the court for consideration of

plaintiff’s July 13, 2020, objections to the June 29, 2020, report

and recommendation of the magistrate judge recommending that the

decision of the Commissioner be affirmed.

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.”). Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the

reviewing court might arrive at a different conclusion. Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Even if supported by

substantial evidence, however, “‘a decision of the Commissioner

will not be upheld where the [Commissioner] fails to follow its own

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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. Failure to Give Weight to the Testimony of VE George Coleman

At a hearing held on July 5, 2018, the ALJ heard the testimony

of Connie O’Brien, a VE who identified jobs in the national economy

which plaintiff could perform. Plaintiff’s counsel asked Ms.

O’Brien whether the person described in the ALJ’s hypothetical

would be employable if that person had an IQ of 59.1 Ms. O’Brien

responded that she was not qualified to interpret IQ scores.

PAGEID 116. At a second hearing held on October 6, 2018, George W.

Coleman, III, testified as a VE. When asked by plaintiff’s counsel

whether the hypothetical person described by the ALJ would be

employable if that person had an IQ in the upper 60's, Mr. Coleman

responded that “[i]n my experience, ... there’s going to have to be

some kind of accommodation in competitive type work.” PAGEID 146.

Plaintiff argues that it was error for the ALJ to credit the

testimony of Ms. O’Brien while giving no weight to the testimony of

Mr. Coleman. Plaintiff contends that based on his qualifications

and experience as a vocational counselor, Mr. Coleman was qualified

to testify concerning whether plaintiff’s IQ scores would require

an accommodation for employment, and that the ALJ’s explanation for

not crediting his testimony was inadequate.

1The ALJ cited exhibits indicating that plaintiff’s

childhood IQ score was 76, and her adult IQ score in 2012 was 59.

PAGEID 59.

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The ALJ is the trier of fact in social security proceedings.

Brown v. Comm’r of Soc. Sec., 1 F. App’x 445, 452 (6th Cir. 2001).

The credibility of a VE’s testimony is within the province of the

ALJ to determine. Barker v. Shalala, 40 F.3d 789, 795 (6th Cir.

1994). This court is unaware of any authority which would require

the ALJ to give good reasons for discounting the testimony of a VE.

See King v. Barnhart, 66 F. App’x 65, 70 (7th Cir. 2003)(ALJ was

not bound to give reasons for rejecting the VE’s opinion); Kolka v.

Chater, 70 F.3d 1279 (table), 1995 WL 713218, at *2 (9th Cir. Dec.

4, 1995)(noting that the requirement for giving clear and

convincing reasons was not applicable to a VE, who was not a

treating physician). In any event, the ALJ provided reasons for

the weight she assigned to the VE opinions.

The ALJ credited the testimony of Ms. O’Brien, which

identified unskilled, medium jobs existing in the national economy

which plaintiff could perform. PAGEID 77. The ALJ concluded that

Ms. O’Brien’s testimony was “based on the greatest longitudinal

perspective of the claimant’s vocational history and consistent

with the totality of the evidence and the DOT [Dictionary of

Occupational Titles][.] PAGEID 77. The ALJ noted that Ms. O’Brien

was “highly qualified by training and experience in formulating an

opinion as to whether the claimant could perform other work

existing in the national economy based upon her exertional,

environmental, postural, and mental limitations as of the

application date.” PAGEID 78 She determined that Ms. O’Brien’s

opinions were entitled to significant weight. PAGEID 78. The ALJ

further concluded that Mr. Coleman’s opinion was entitled to no

weight because the regulations, the DOT and the Selected

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Characteristics of Occupations manual “do not provide that IQ

scores comparable to or the same as the claimant’s automatically

result in any specific functional limitations and restrictions,

including to accommodated rather than competitive work[.]” This

explanation was adequate. See Poe v. Comm’r of Soc. Sec., 342 F.

App’x 149, 158 (6th Cir. 2009)(ALJ was not required to accept

testimony of plaintiff’s VE over that of the VE who based his

opinion on the contents of the DOT).

The court further notes that the role of the VE is to testify

whether the claimant can make an adjustment to other work based on

the claimant’s residual functional capacity, age, experience, and

education. Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th

Cir. 2004). The VE’s testimony is directed solely to whether

there exist a significant number of employment opportunities in the

regional and national economies given a claimant’s age, experience,

and education, along with the ALJ’s assessment of the claimant’s

RFC. Id. “The vocational expert is not expected to evaluate the

claimant’s medical conditions in making this determination.

Indeed, vocational experts are not required to have any medical

training, so any evaluation of medical evidence they perform would

be outside their area of expertise.” Id.

The procedural rules applicable to social security proceedings

also support the ALJ’s decision not to credit Mr. Coleman’s

testimony. The Hearings, Appeals and Litigation Law Manual

(“HALLEX”),2 a procedural guide for processing and adjudicating

social security claims, states that the “ALJ may not ask a VE to

provide testimony on psychological (i.e., medical) matters even if

2See https://www.ssa.gov/OP_Home/hallex/hallex.html.

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the VE is a certified mental health professional.” HALLEX §I-2-5-

48. The manual further provides that the “ALJ will not permit the

VE to respond to questions on medical matters or to draw

conclusions not within the VE’s area of expertise.” HALLEX §I-2-6-

74(C). The Vocational Expert Handbook, also found on the Social

Security Administration’s website, states that a VE “should never

comment on medical matters, such as what you believe the medical

evidence indicates about the claimant’s diagnosis or the functional

limitations caused by the claimant’s impairment(s)[.]” Although

HALLEX is not binding on the court, the court can still consider

the procedural guidance it provides. See Bowie v. Comm’r of Soc.

Sec., 539 F.3d 395, 399 (6th Cir. 2008). Here, Mr. Coleman’s bare

bones discussion of the impact of plaintiff’s IQ scores, phrased by

counsel as being “within the upper 60s”, PAGEID 146, on plaintiff’s

employability in a competitive work setting constituted a comment

on medical evidence which invaded the province of the ALJ to

determine plaintiff’s RFC. The ALJ did not err in failing to

credit the testimony of Mr. Coleman.

B. Error in Formulating Plaintiff’s RFC

Plaintiff’s records were reviewed by Karen Steiger, Ph.D., and

Janet Souder, Psy.D., state agency psychologists. Both of these

experts opined that plaintiff was able to follow one-step

directions but was unable to multitask. PAGEID 157, 174. The ALJ

gave partial weight to their RFC assessments of plaintiff’s mental

functional limitations and restrictions. PAGEID 73-74. Plaintiff

argues that it was error for the ALJ to fail to incorporate the

limitation of one-step directions in the RFC.

A claimant’s RFC is the most that a claimant can do despite

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his or her limitations. 20 U.S.C. §404.1545(a)(1). The ALJ, not

a medical expert, ultimately determines the claimant’s RFC.

Coldiron v. Comm’r of Soc. Sec., 391 F.App’x 435, 439 (6th Cir.

2010); 20 C.F.R. §§404.1527(e)(2) and 404.1546(c). An ALJ’s

decision to give weight to medical opinion evidence does not

require the ALJ to incorporate every restriction proposed by the

medical source. Salisbury v. Comm’r of Soc. Sec., No. 5:11-CV-

2277, 2013 WL 427733, *7 (N.D. Ohio Feb. 1, 2013). “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.” Reeves v. Comm’r of Soc. Sec., 618 F.

App’x 267, 275 (6th Cir. 2015). There is no legal requirement for

an ALJ to explain why a limitation or restriction is not adopted,

even when the ALJ gives the opinion significant weight. Price v.

Comm’r of Soc. Sec., 2:18-cv-128, 2019 WL 396415, at *2 (S.D.Ohio

Jan. 31, 2019).

The ALJ was not obligated to give “good reasons” for the

weight assigned to the opinions of the state agency psychologists.

Ealy, 594 F.3d at 514; Smith v. Comm’r of Soc. Sec., 482 F.3d 873,

876 (6th Cir. 2007). However, the ALJ discussed the weight given

to the opinions of the state agency psychologists at length at both

step three and step four of the analysis. The ALJ also adequately

explained why she did not incorporate the proposed limitation

concerning one-step directions in the RFC. The ALJ noted:

Although restatements were made into more vocationally

relevant terms, the opinions of the BDD reviewing

psychologists are entitled to partial weight in assessing

the claimant’s mental functional limitations and

restrictions as of the application date.... The

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claimant’s limitations to performing simple routine tasks

with no more than occasional changes in work setting and

decision making required, and few detailed instructions

where changes are introduced slowly and well explained,

accommodate the BDD assessments that she is limited to

performing simple routine one- and two-step directions

with occasional changes fully explained and is incapable

of multitasking.

PAGEID 73.

The ALJ then discussed record evidence that: plaintiff’s

psychological counseling was effective in ameliorating her mental

conditions; her noncompliance with treatment; her education,

childhood IQ scores, and enrollment in online college classes; her

admitted ability to follow one-step and written instructions; and

activities involving significant understanding, remembering, or

applying information. PAGEID 73.3 The ALJ concluded:

This evidence does not reasonably justify greater

reduction of the claimant’s mental residual functional

capacity, and could support a determination that she is

less mentally limited than set forth above as of the

application date. However, in extending the benefit of

the doubt and in light of the claimant’s adult IQ scores,

it is determined that she is limited to only simple oral

instructions in the workplace.

PAGEID 73.

As the magistrate judge correctly noted, the ALJ did not

reject the limitations posed by the state agency psychologists

because they were not stated in vocationally relevant terms.

3The ALJ observed elsewhere in the decision that plaintiff:

graduated from high school; reads, writes, speaks, and

understands English; described herself as able to follow

instructions and being eager to learn new skills; was seen on

examination as being alert and oriented, with clear, coherent,

intact, and normal attention span, and adequate memory; and

demonstrated an ability to follow one-step directions. PAGEID

62.

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Rather, the ALJ adopted the opined limitations which were

consistent with the record and rejected others, concluding that the

record evidence did not justify a greater reduction of plaintiff’s

RFC. The ALJ discussed the opinions of the state agency

psychologists at length at steps three and four of the analysis,

noting that their opinions were inconsistent with the totality of

the evidence insofar as the evidence could support a determination

that plaintiff has no or only mild limitations in understanding,

remembering or applying information and in concentrating,

persisting, or maintaining pace. PAGEID 63, 68. Nonetheless, in

light of plaintiff’s adult IQ scores, the ALJ extended plaintiff

“the benefit of all reasonable doubt” and determined that plaintiff

had moderate limitations in these areas. PAGEID 63, 68.

Plaintiff notes that the ALJ erroneously referred to the state

agency psychologists’ assessment as limiting plaintiff to “one-and

two-step” directions, when in fact those experts stated that she is

able to follow one-step directions. Plaintiff argues that this

indicates that the ALJ was not familiar with the state agency

opinions or misunderstood those opinions. However, the reference

to “one-and-two-step” directions, if error, was harmless. The ALJ

discussed the opinions of the state agency psychologists at length

in her decision and was obviously familiar with them. The ALJ

referred several times in her decision to other evidence indicating

that plaintiff could follow one-step directions. However, as the

magistrate judge correctly noted, the ALJ never determined that

plaintiff was only capable of following one-step directions, nor

does the language of the RFC limit plaintiff to one-to-two-step

directions. Instead, the REF, phrased in more vocationally

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relevant terms, limits plaintiff to “simple routine tasks with few

detailed instructions and where changes are introduced slowly and

well explained” and “to understanding simple oral instructions, and

all instructions must be given orally.” PAGEID 69. The ALJ was

not required to adopt an expert’s proposed limitations verbatim

into the RFC. Reeves, 618 F. App’x at 275.

The court concludes that the RFC formulated by the ALJ is

based on substantial evidence, and that remanding this case for

additional clarification is not warranted.

III. Conclusion

In accordance with the foregoing, the court finds that no

reversible error has been shown, and that the ALJ’s finding of

nondisability is supported by substantial evidence. The court

adopts and affirms the magistrate judge’s report and recommendation

(Doc. 13). The Commissioner’s decision is affirmed, and this

action is dismissed. The clerk shall enter final judgment

affirming the decision of the Commissioner.

Date: November 3, 2020 s/James L. Graham

James L. Graham

United States District Judge

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