# Mitchell v. Commissioner of Social Security

> District Court, S.D. Ohio · November 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10376641

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10376641

## How later opinions describe it (automated extraction)

- noting that the requirement for giving clear and convincing reasons was not applicable to a VE, who was not a treating physician

## Opinion text

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
2
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.
3
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
6
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.
8
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
9
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376641. Public record. Not legal advice.