IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Richard B. Taylor, :

 Plaintiff, :

 v. : Case No. 2:11-cv-409

Michael J. Astrue, : JUDGE EDMUND A. SARGUS, JR.

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Richard B. Taylor, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his applications for disability insurance benefits and

supplemental security income. Those applications were filed on

May 9, 2007, and alleged that plaintiff became disabled on July

22, 2004. He claims a disability based on high blood pressure,

depression, and chronic joint pain. 

After initial administrative denials of his claim, plaintiff

was given a videoconference hearing before an Administrative Law

Judge on March 3, 2010. In a decision dated March 11, 2010, the

ALJ denied benefits. That became the Commissioner’s final

decision on March 31, 2011, when the Appeals Council denied

review.

After plaintiff filed this case, the Commissioner filed the

administrative record on July 19, 2011. Plaintiff filed his

statement of specific errors on August 22, 2011. The

Commissioner filed a response on October 27, 2011. No reply

brief was filed, and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 28 through 43 of the record, with further testimony

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beginning at page 57. Plaintiff, who was 56 years old at the

time of the hearing and is a high school graduate, testified as

follows.

Plaintiff’s last job was as a courier for a company that

delivered medical supplies. He was injured while performing that

job. He had a job before that with a different courier company,

which required lifting anywhere between ten and 150 pounds. The

job also involved driving a large truck and much bending and

stooping. He has worked as a telemarketer as well, and was

actually working part-time at that job at the time of the

administrative hearing. However, even working three hours a day

at that job was taxing his capacity to work.

The primary reason that he cannot work relates to pain in

his left arm and back, and pain in his right leg. He was not

getting treatment for his back because he could not afford it. 

He believed he could stand for fifteen minutes at a time and he

could walk only short distances. He could sit for fifteen or

twenty minutes. His telemarketer job did allow him to stand

periodically. He could lift a gallon of milk but not much more,

and could bend a little bit but with pain. 

Plaintiff also testified to having an ulcer, loss of blood,

and kidney or bladder problems. He had surgery recently. He was

also depressed about his situation. His pain affected his

ability to concentrate. Finally, if he were to eat and drink

normally, he would have to use the restroom two or three times an

hour. 

III. The Medical Records

The medical records in this case are found beginning on page

250 of the administrative record. The records which are relevant

to the ALJ’s decision can be summarized as follows.

The records show that from 2004 to 2007 plaintiff had been

treated for various conditions such as degenerative changes in

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his ankle, some facial swelling, and hypertension. He did fall

at work in 2004 and suffered contusions and a back strain. He

had been taking Advil for pain as well as blood pressure

medication.

On August 7, 2007, plaintiff underwent a consultative

physical examination. The examination was positive for clicking

in the right knee and pain in the right ankle, knee, and back. 

He had a full range of motion and his motor strength was normal. 

His gait was mildly uneven. He could lift 25 or 30 pounds. No

other work-related impairments were noted. X-rays showed some

scattered arthritic changes in his back. A state agency

reviewer, Dr. Perencevich, though that plaintiff could perform

essentially a full range of medium work.

Dr. Donaldson, a psychologist, performed a consultative

psychological examination on August 24, 2007. He reported

constant pain since his fall in 2004. He was working ten hours

per week as a telemarketer. He was agitated during the

interview. His affect was flat. He reported a diminished

interest in activities, insomnia, fatigue, and a lack of

concentration. He also had symptoms of anxiety. An anxiety

disorder was diagnosed, as well as a mood disorder. Dr.

Donaldson thought that plaintiff could deal adequately with

simple job instructions but might be moderately impaired in his

ability to do repetitive tasks. Other limitations were only

mild, except for a moderate impairment in the ability to deal

with ordinary work stress. His GAF was rated at 60-65. A state

agency reviewer, Dr. Hoyle, concluded that plaintiff had some

moderate limitations in his ability to deal with coworkers or the

public and in dealing with changes in the work setting. He would

also have moderate difficulties in maintaining concentration,

persistence or pace. A subsequent reviewer, Dr. Pawlarczyk, made

similar observations.

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Plaintiff was admitted to the emergency room on October 16,

2007, with symptoms of back pain and blood in his urine. He

exhibited some tenderness in his back and in his right knee. An

acute urinary tract infection was diagnosed. Approximately two

years later, a study found that he had a tumor in his bladder, as

well as some kidney cysts. He underwent surgery to resect the

tumor. It appears that the tumor was causing plaintiff to be

anemic. 

IV. The Vocational Testimony

Ms. Rapant, a vocational expert, also testified at the

administrative hearing. Her testimony begins at page 43. She

noted that plaintiff had worked as a courier and as a

telemarketer. Those jobs were either light or medium, and either

unskilled or semi-skilled. She was asked questions about a

hypothetical person who could work at the medium exertional level

but who had a number of restrictions unrelated to lifting,

carrying, standing, sitting or walking, and who also had some

psychological restrictions. That person would also have to be

permitted to wear some sort of bladder control garment. Ms.

Rapant testified that such a person could not perform the courier

job because it involved being around moving machinery, but he

could do the telemarketing job. The same would be true if the

person were limited in his ability to have personal contact (as

opposed to telephone contact) with others. If the person were

limited to unskilled work, he could not function as a

telemarketer, but he could do other medium, unskilled jobs such

as laundry worker or kitchen helper. Such jobs do not have

strict production quotas.

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 9

through 18 of the administrative record. The important findings

in that decision are as follows.

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The Administrative Law Judge found, first, that plaintiff

met the insured requirements of the Social Security Act through

December 31, 2011. Next, he found that plaintiff had not engaged

in substantial gainful activity from his alleged onset date of

July 22, 2004 through the date of the decision, although he did

work after that date. As far as plaintiff’s impairments are

concerned, the ALJ found that plaintiff had severe impairments

including chronic gastritis, duodenal ulcers, diverticulitis in

colon and hemorrhoids, status post transurethral resection of

bladder for non-invasive carcinoma, obesity, and degenerative

lumbar changes. Additionally, he had non-severe impairments

including hypertension, high blood sugar, right knee and ankle

problems, an anxiety disorder, and a mood disorder. The ALJ also

found that these impairments did not meet or equal the

requirements of any section of the Listing of Impairments (20

C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform a limited range of medium work, with limits

on his ability to climb ramps or stairs, to climb ladders, ropes

or scaffolds, to balance, stoop, kneel, crouch, and crawl, and

with the restriction that he not work around dangerous moving

machinery or exposed heights. He would also experience limited

interruptions from psychologically-based symptoms. Additionally,

he would need a job which permitted him to wear a urinary bladder

control garment, and which involved only occasional interpersonal

interaction with the public. The ALJ accepted the vocational

expert’s testimony that someone with such limitations could

perform plaintiff’s past relevant work as a telemarketer. As a

result, the ALJ concluded that plaintiff had not demonstrated an

entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

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 In his statement of specific errors, plaintiff raises the

following issues. First, he contends that the ALJ erred by 

finding that his anxiety and mood disorders and his ankle injury

were not severe impairments. Second, he argues that the medical

evidence from treating sources concerning his disability was not

evaluated properly. Third, he asserts that his telemarketing job

was not past relevant work. Fourth, he claims that the

hypothetical questions asked of the vocational expert did not

properly incorporate all of his restrictions. Fifth, he takes

issue with the way in which the ALJ assessed his credibility. 

The Court generally reviews the administrative decision under

this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

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would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Taking the issues in a slightly different order, the Court

first determines that the issue concerning treating sources

clearly lacks merit. It is true that the only treating sources

in the record are either emergency room physicians or the

surgeons who operated on plaintiff for his bladder tumor. It is

equally true that none of them ever expressed any opinion either

that plaintiff was disabled or that he suffered any specific

limitations on his ability to perform work-related functions. 

The “treating physician” rule, 20 C.F.R. §404.1527(d), refers to

“medical opinions” which deal with the “nature and severity of

[the claimant’s] impairment(s)....” There are simply no such

opinions in this record as to the severity of plaintiff’s

impairments, let alone any opinions which are inconsistent with

the residual functional capacity finding made by the ALJ. While

the emergency room physicians’ statements as to the nature of

plaintiff’s impairments, including the low back problems and some

right knee and ankle abnormalities which they observed and

treated, deserved some deference in terms of whether plaintiff

actually has such impairments, it appears that the ALJ accepted

the opinions on that subject. Overall, there is simply no basis

on which to conclude that the ALJ did not accord proper deference

to whatever opinions may be found in the emergency room records,

and therefore there has been no violation of the “treating

physician” rule.

Plaintiff’s first claim about the ALJ’s finding that his

ankle injury and psychological impairments were not “severe” is

also without merit, but for a different reason. There is little

evidence in the record apart from plaintiff’s own testimony to

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suggest that the ankle injury has caused ongoing problems, and

the issue of credibility is dealt with in more detail below. 

Further, there is nothing - not even the plaintiff’s own

testimony - indicating that this injury would interfere with his

ability to perform the physical requirements of a telemarketing

job, which he performed at the sedentary level with the option to

sit or stand. Any error in regard to the ankle injury clearly

had no effect on the ultimate outcome of the case and is

therefore harmless, at most. See, e.g., Allen v. Barnhart, 357

F.3d 1140, 1145 (10th Cir. 2004)(errors which do not undermine

the Court’s confidence in the outcome of the case may be

considered harmless). 

The issue concerning plaintiff’s psychological impairments

is not quite so clear-cut. All of the reports about the severity

of plaintiff’s impairments suggested the presence of some

moderate limitations. Both Dr. Pawlarczyk and Dr. Hoyle, the

state agency reviewers, completed forms which, rather than

indicating that plaintiff’s mental impairments were not severe,

stated that a residual functional capacity assessment was

necessary. Dr. Donaldson also thought there were some moderate

limitations in the areas of performing repetitive tasks (although

that was primarily due to psychomotor slowness) and in dealing

with work stress. The presence of these types of limitations can

be expected to have an effect on a claimant’s ability to perform

work-related functions and are evidence of a severe impairment. 

See 20 C.F.R. §404.1520(c); Salmi v. Secretary of H.H.S., 774

F.2d 685, 691-92 (6th Cir. 1985).

The Commissioner does not directly defend the ALJ’s decision

to treat plaintiff’s mood or anxiety disorders as not severe, and

there is little in the way of explanation in the administrative

decision for this result; in particular, the ALJ did not even

acknowledge that all three of the mental health sources had noted

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moderate impairments. Rather, the Commissioner argues that this

error is immaterial because the ALJ found other severe

impairments and proceeded to the subsequent steps of the

sequential evaluation process.

That position is correct to the extent that the ALJ properly

assessed the limitations imposed by the impairments which were

not deemed severe. As the Court of Appeals noted in Maziarz v.

Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir.

1987), a case where a similar claim was made about a cervical

condition deemed nonsevere, “[s]ince the Secretary properly could

consider claimant's cervical condition in determining whether

claimant retained sufficient residual functional capacity to

allow him to perform substantial gainful activity, the

Secretary's failure to find that claimant's cervical condition

constituted a severe impairment could not constitute reversible

error.” Thus, although the failure to deem these mental

impairments severe is not necessarily grounds for reversal or

remand, the question becomes whether the effect of these

conditions was properly taken into account at step four of the

process when the ALJ determined plaintiff’s mental residual

functional capacity. See Isaacs v. Astrue, 2009 WL 3672060, *9

(S.D. Ohio November 4, 2009)(“the ‘critical issue’ for the

reviewing Court under these circumstances is whether the ALJ's

RFC finding is supported by substantial evidence”). 

At the RFC step of the process, the ALJ found that plaintiff

was able to perform detailed work and could maintain a 40-hour

work week with only limited interruptions from psychologicallybased symptoms, but would need to avoid most physical interaction

with the public. The ALJ neither mentioned nor discussed any of

the psychological reports in the section of the administrative

decision dealing with residual functional capacity, but indicated

earlier in the decision that “the residual functional capacity

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assessment reflects the degree of limitation the undersigned has

found in the ‘paragraph B’ mental function analysis.” (Tr. 14). 

That was, of course, a determination that under the four

“paragraph B” criteria, plaintiff was, at most, mildly impaired. 

As noted, that determination is inconsistent with the three

reports in the record, which are the only evidence concerning

mental impairments; Dr. Hoyle found one area of the “B” criteria

where there were moderate, rather than mild, limitations, and Dr.

Pawlarczyk found two. Further, it is not at all clear how the

ALJ reached his determination that plaintiff’s inability to be

around people related to physical proximity as opposed to dealing

with the public by telephone. It is true that Dr. Hoyle and Dr.

Pawlarczyk believed that plaintiff could carry out detailed

instructions, so that portion of the mental RFC assessment finds

support in the record, but they also both concluded that he had

moderate limitations on his ability to maintain attention and

concentration for extended periods, to perform activities within

a schedule, maintain regular attendance, be punctual within

customary tolerances, complete a normal workday and work week

without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number of

rest periods, and to interact appropriately with the general

public. (Tr. 298-99). The finding that plaintiff could not have

more than occasional physical contact with the public does not

address these issues in any way, and they were not addressed with

the vocational expert in the context of plaintiff’s being able to

do his past relevant work other than in a brief reference to the

fact that any type of interruption from psychologically-based

symptoms would be “limited.” That statement was not further

defined. Given the total absence of any explanation why the ALJ

seems to have rejected the views of all three mental health

professionals who either examined plaintiff or reviewed his

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records, and the absence of any countervailing evidence which the

ALJ might have relied on, even though he did not do so

explicitly, the Court cannot conclude that his decision on the

issue of mental residual functional capacity is supported by

substantial evidence. When an ALJ errs in “assessing plaintiff's

... impairment at step two of the sequential evaluation process

and in assessing plaintiff's RFC ... th[e] matter should be

remanded for further proceedings.” Isaacs, supra, at *11, citing

Faucher v. Secretary of Health and Human Services, 17 F.3d 171,

176 (6th Cir. 1994).

The Court will briefly address plaintiff’s other contentions

should similar issues arise when the case is considered on

remand. Any issue concerning the accuracy of the hypothetical

questions posed to the vocational expert is now moot since the

Court has determined that the RFC used in those questions does

not find substantial support in the record. As far as whether

telemarketing constituted past relevant work, the Commissioner

cites to evidence that plaintiff’s earnings from this job

exceeded the level required for substantial gainful activity for

at least one year (2004), and at this point plaintiff has not

made any cogent argument to the contrary. 

Finally, with respect to the credibility determination, the

ALJ did cite to relevant evidence as far as the medical records

were concerned in arriving at a physical RFC which discounted

plaintiff’s testimony; and while the absence of extensive medical

records, apparently due to plaintiff’s inability to afford

treatment, is a factor to be taken into account, there is no

indication that the ALJ failed to do so. None of the findings of

either the emergency room doctors or the consultative examiner

suggested extensive medical problems, and the ALJ legitimately

considered this evidence in making an overall decision as to

plaintiff’s ability to do the physical demands of work. The ALJ

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also made reference to plaintiff’s work history and his

activities of daily living. A reasonable person could have

reached the same conclusion on this record, and that is enough to

sustain the credibility determination made here, even if the

decision is somewhat short on a detailed examination of the

factors set forth in 20 C.F.R. §404.1529. See, e.g., Cross v.

Commissioner of Social Sec., 373 F.Supp.2d 724, 733 (N.D. Ohio

2005)(noting that “[a]n ALJ in a unified statement should express

whether he or she accepts the claimant's allegations as credible

and, if not, explain the finding in terms of the factors set

forth in the regulation [footnote omitted]... but [t]he ALJ need

not analyze all seven factors identified in the regulation ...”). 

Although the Cross court also stated that the ALJ “should provide

enough assessment to assure a reviewing court that he or she

considered all relevant evidence,” id., and that the way in which

the ALJ articulated those findings in that case did not

“represent[] a model that future disability decisions should

emulate,” the court still found it sufficient because the court

was able to determine that all relevant evidence was considered

and that evidence supported the credibility finding which was

made. The same is true here. Thus, none of these three

assignments of error provide a basis for remand which is

independent of the error made by the ALJ concerning the mental

residual functional capacity assessment, although on remand the

ALJ is free to reconsider any or all of these matters in the

light of the current record, or the record as supplemented,

should that occur.

VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

this case be remanded to the Commissioner of Social Security

pursuant to 42 U.S.C. §405(g), sentence four.

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VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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