1IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KATHRYN A. BENNETT,

Plaintiff,

vs. Civil Action 2:12-CV-07

Judge Frost

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and Background

This is an action instituted under the provisions of 42

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

of Social Security denying plaintiff’s application for disability

insurance benefits. This matter is now before the Court on

plaintiff’s Statement of Errors, Doc. No. 12, and the

Commissioner’s Memorandum in Opposition, Doc. No. 13.

Plaintiff Kathryn A. Bennett filed her application for

benefits on January 8, 2008, alleging that she has been disabled

since December 15, 2006, as a result of alopecia, eczema,

tinnitus, chronic fatigue syndrome, posttraumatic stress disorder

(“PSTD”), joint pain, migraines and insomnia. PageID 234. The

application was denied initially and upon reconsideration, and

plaintiff requested a de novo hearing before an administrative

law judge.

A hearing was held on September 13, 2010, at which

plaintiff, represented by counsel, appeared and testified as did

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Bruce S. Growick, who testified as a vocational expert. In a

decision dated November 15, 2010, the administrative law judge

found that, despite her severe impairments, plaintiff has the

residual functional capacity to perform work that exists in

significant numbers in the national economy. Accordingly, the

administrative law judge concluded that plaintiff was not

disabled within the meaning of the Social Security Act. PageID

124-33. That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined

review on November 16, 2011. PageID 59-62.

Plaintiff was 44 years of age at the time the administrative

law judge issued his decision. She has a high school education,

PageID 240, and past relevant work experience as a

cashier/waitress, picker/packer, material handler, assembler and

machine operator. PageID 235, 253-64. She also served in the

United States Army, including service during the Gulf War as a

combat medic. PageID 249, 337.

Plaintiff testified at the administrative hearing that she

last worked in December 2006. PageID 80. She attempted – without

success – to find new employment after having been laid off, but

eventually concluded that she could not “do the things I used to

do.” PageID 81.

 Plaintiff believes that she is disabled by migraine

headaches, which she experiences 2 to 3 times per week and which

are associated with vomiting. PageID 82-83, 101-02. She also

suffers from chronic fatigue syndrome. PageID 83-85. She has

constant aches and feels physically and emotionally drained.

PageID 99-100. Her PTSD, hearing loss and tinnitus, and sinus

allergies also prevent her from working. PageID 83. Her PTSD,

which she attributes to her war experiences, causes insomnia,

flashbacks and nightmares and significantly impacts her daily

functioning. PageID 84, 91. She is unable to focus or to

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concentrate. PageID 97, 100, 103-04. Her war experiences also

caused hearing loss and tinnitus. PageID 104. Plaintiff also

testified to joint pain in her ankles, knees, wrists and elbows;

pain in her hips and shoulders is increasing. PageID 85. 

Plaintiff cares for the four children who still live at home

and for pets. Although she can prepare food and perform household

chores, PageID 84-85, she is sometimes so exhausted that she then

sleeps until the children return from school. PageID 85. She can

no longer mow the lawn. She cannot stand or sit for long periods

of time without becoming fatigued or suffering an aggravation of

her pain. PageID 89-90.

The vocational expert was asked to assume a claimant with

plaintiff’s vocational profile and the residual functional

capacity for a reduced range of light work. In response, the

vocational expert testified that such a claimant could not

perform plaintiff’s past relevant work but could perform such

jobs as machine tender, bench assembler and quality assurance

inspector. PageID 112.

II.

The Medical Evidence of Record.

Plaintiff was treated at Veteran’s Administration (“VA”)

health facilities from August 2003 through January 2009, PageID

388-518; 541-77; 605-22; 639-59, for various conditions,

including PTSD, dysthymic disorder, depressive disorder, nicotine

dependence, migraine headaches, dermatitis, acute eczema,

tinnitus, joint effusion at multiple sites, hair loss,

conjunctivitis, personal history of exposure to Persian Gulf

region and allergic rhinitis. Id.

In May 2004, i.e., prior to plaintiff’s alleged December

2006 disability onset date, plaintiff presented to an emergency

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room with complaints of migraine headache with nausea. Phenergan

and Vicodin were administered. PageID 379-81.

In June 2006, plaintiff was evaluated by VA psychiatrist

Ernesto Castillo, M.D. PageID 452-53. Plaintiff reported

recurring nightmares with increasing frequency and increasing

anger issues. She was depressed and lacked energy; she had

difficulty staying focused and had lost interest in activities.

Dr. Castillo noted an appropriate affect and no evidence of

hallucinations or delusions. Speech was normal and plaintiff was

oriented in all spheres with good memory. Dr. Castillo diagnosed

PTSD and dysthymic disorder and assigned plaintiff a Global

Assessment of Functioning (“GAF”) score of 65, which is

indicative of only mild dysfunction. She was prescribed

Citalopram. PageID 453. In July 2006, plaintiff reported one

weekly nightmare, reduced conflict with her husband and

improvement with medication. Trenton Fraley, a social worker,

diagnosed PTSD, depressive disorder, NOS, and nicotine

dependence. Plaintiff’s GAF score was listed as 60. PageID 416.

In September 2006, plaintiff reported to VA psychiatrist

John Bartz, M.D., that she felt calmer and was having only 1-2

nightmares per week since she started Citalopram. She rated her

pain at zero on a ten-point scale. Dr. Bartz diagnosed PTSD,

depressive disorder, NOS, nicotine dependence, alcohol

dependence, in remission, cannabis abuse, in remission and

cocaine abuse, in remission. Plaintiff’s GAF score was 60. PageID

445. Dr. Bartz adjusted plaintiff’s medication. Id.

As noted supra, plaintiff alleges that she became disabled

in December 2006.

When seen by Dr. Bartz in May 2007, plaintiff was alert,

pleasant and cooperative. Her affect was euthymic, her speech

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was normal and she was oriented x3. Plaintiff reported that she

felt calmer and was less irritable. PageID 403-05.

Plaintiff presented to an emergency room in July 2007 with

chest pain after moving heavy furniture. The pain resolved. 

PageID 366. Her physical and psychiatric examinations were

normal. PageID 367, 371. She was oriented x3 and had a normal

affect with normal speech.

State agency psychologist Marianne Collins, Ph.D., reviewed

the file in March 2008 and evaluated plaintiff’s mental

impairments by reference to Listing 12.04 (affective disorders),

12.06 (anxiety-related disorders) and 12.09 (substance addiction

disorders) and concluded that plaintiff’s documented mental

impairments neither met nor equaled any listing. PageID 521. In

considering the “B” criteria of the listings, Dr. Collins opined

that plaintiff had mild limitations in her activities of daily

living and had moderate restrictions in her social functioning

and in her ability to maintain concentration, persistence or

pace. PageID 531. Dr. Collins indicated that the evidence did

not establish the presence of the “C” criteria. PageID 532.

According to Dr. Collins, plaintiff could perform simple to

moderately complex tasks with limited social interaction and no

strict production quotas. PageID 537. In August 2008, state

agency psychologist Todd Finnerty, Psy.D., reviewed the record

and affirmed Dr. Collins’ opinion. PageID 539.

In August 2008, plaintiff reported to VA psychiatrist James

Oaks, M.D., that her PTSD had worsened without treatment. PageID

564-57. She got along well with family and friends but was

stressed by child rearing. Plaintiff reported minimal anhedonia,

depressed mood, feeling constantly fatigued and nervous when

stressed. PageID 502. She also complained of pain, rating her

pain in her back, ankles, knees and elbows at four on a ten-point

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scale. Dr. Oaks diagnosed a depressive disorder, NOS (primary

diagnosis), and PTSD. He assigned a GAF score of 60. PageID 566.

Plaintiff’s medications were reconciled and she was instructed to

follow-up in 6 weeks. Id.

In October 2008, Mark E. Weaver, M.D., performed a

consultative evaluation of plaintiff at the request of the state

agency. PageID 578-86. Plaintiff walked with a stiffened,

symmetric gait. She complained of pain in both ankles and knees

after sitting or standing ten minutes. She used no ambulatory

aides or braces. She did not become short of breath after walking

forty feet up and down the hallway or after performing physical

activities. Musculoskeletal examination showed diffuse tenderness

to palpation and some crepitus in the ankles, knees and elbows

with active motion. Strength testing showed ratchety giving way

with pain inhibition in all muscle groups of both lower

extremities and in the proximal upper extremities. Inspection of

the hands bilaterally showed no swelling, discoloration or gross

deformities and no intrinsic muscle spasm or atrophy. There was

no tenderness to palpation in the cervical, thoracic or lumbar

areas. Active motion of the neck and dorso-lumbar spine was

normal. According to Dr. Weaver, plaintiff exhibited a somewhat

nervous, anxious affect through the entire examination. She was

oriented x 3 and was able to recall four out of four objects in

the exam room after fifteen minutes. She was able to follow all

directions readily. According to Dr. Weaver, plaintiff would

“probably” be limited in the performance of physical activities

involving sustained sitting, standing, walking, climbing,

reaching, squatting, stooping, crouching, kneeling, crawling,

lifting and carrying. She would also be limited in environments

requiring extensive social interaction and interpersonal

communication. PageID 582. Plaintiff could perform “physical

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activities involving handling objects, hearing, speaking,

following directions and travel in environments that would allow

her the opportunity to change positions from sitting to standing

and vice versa periodically as needed.” Id.

Paul Knight, M.D. tested plaintiff's pulmonary function on

behalf of the state agency in October 2008. PageID 587-96.

According to Dr. Knight, plaintiff’s levels were at the “very

lowest limit of normal” and she had mild obstruction. PageID 589.

In November 2008, the record was reviewed by state agency

physician Maria Congbalay, M.D., who opined that plaintiff could

lift 50 pounds occasionally and 25 pounds frequently, could stand

and/or walk for six hours in an eight-hour workday, and could sit

for six hours in an eight-hour workday with a sit/stand option.

PageID 598. Plaintiff could frequently climb ramps and stairs,

kneel, crouch and crawl; she could occasionally climb ladders,

ropes and scaffolds. PageID 599. According to Dr. Congbalay,

plaintiff should avoid concentrated exposure to respiratory

irritants. PageID 601. Dr. Congbalay found that plaintiff's

allegations were partially credible. PageID 602. 

Plaintiff was seen again by Dr. Oaks in January 2009. PageID

614-16. She felt that her condition had not improved since her

August 2008 visit, although she did not explain why she had not

followed up as directed. Recent stressors included marital

fracture and her mother’s illness. She had discontinued some of

her medication. Plaintiff reported irritability and sleep

disorders alternating between insomnia and hypersomnia (which she

attributed to “chronic fatigue syndrome.”) Plaintiff also

complained of increased pain, which she rated at four on a tenpoint scale. PageID 615. Plaintiff reported that she performed

crafts as a leisure activity. Id. On mental status examination,

plaintiff’s mood was disgruntled, her affect was mood-congruent

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and mildly restricted, her judgment was intact and her insight

was limited. Plaintiff’s diagnoses remained depressive disorder

and history of PTSD, as did her GAF score of 60. Id. Dr. Oaks

increased plaintiff’s medication. 

On July 29, 2010, Keli Yee, Ph.D., performed a consultative

psychological evaluation at the request of a county welfare

agency. PageID 624-32. Plaintiff reported depression, anxiety,

flashbacks, nightmares and hypervigilance; she was easily

frustrated. Dr. Yee noted problems with reduced

attention/concentration and persistence with tasks. Plaintiff had

not taken anti-depressant medication for three weeks prior to

this assessment, and plaintiff noted changes in her mood.

Plaintiff’s hobbies were listed as painting ceramics and

attending movies. PageID 627. Her memory was normal. Id. Dr. Yee

diagnosed PTSD and mood disorder, NOS. PageID 568. According to

Dr. Yee, plaintiff was 

a poor candidate to return to work due to multiple 

return to work obstacles to include medical and 

psychological. Her current mood symptoms are chronic 

in nature, and are not currently being monitored or

managed. Due to poor attention, concentration, and 

moods, she is a poor candidate for any vocational 

assistance at this time. She appears to be a better 

candidate for a longer term disability type program. 

PageID 631. Dr. Yee also completed a mental functional capacity

assessment in which she found that plaintiff had no significant

limitations in eleven areas of functioning, moderate limitations

in eight areas, and a marked limitation in her ability to

complete a normal work-day and workweek without interruptions

from psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length of rest

periods. PageID 623.

Plaintiff underwent a functional capacity evaluation at a VA

facility in August and September 2010. PageID 640-43, 651-59.

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Plaintiff could lift ten pounds frequently and twenty pounds

occasionally, could sit for thirty-five minutes at a time, could

stand for seven minutes at a time, could walk for six minutes at

a time and could balance normally. PageID 657-59. She had low

grip strength and had difficulty with kneeling, squatting and

crawling. PageID 658. The therapist concluded that plaintiff “may

be more suited to sedentary tasks due to limited standing

tolerance.” Id.

In November 2008, the VA found that plaintiff was 10%

disabled based on her PTSD and 10% disabled based on her joint

pain. PageID 661-62. Id.

III.

Administrative Decision

In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of chronic fatigue

syndrome (CFS); posttraumatic stress disorder (PTSD); history of

migraine headaches; and poly-substance abuse in partial

remission, but that plaintiff does not have “an impairment or

combination of impairments” that meets or equals a listed

impairment. PageID 126. According to the administrative law

judge, plaintiff has the residual functional capacity to perform

light work except that she could not perform work that requires

her to stand, sit and/or walk for more than 6 hours in an eighthour workday. Id. She could frequently kneel, crouch, crawl,

and/or use stairs but could only occasionally use ladders. Id.

Mentally, the administrative law judge found that plaintiff could

not perform fast-paced work or work that requires her to perform

strict, time-related tasks. Id. She could not perform work that

requires more than superficial contact with coworkers, or work

that requires more than occasional changes in setting or

assignments. Id.

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Id. Relying on the vocational expert’s testimony, the

administrative law judge found that this residual functional

capacity precluded the performance of plaintiff’s past relevant

work but would permit the performance of jobs that exist in

significant numbers in the national economy. PageID 132-33.

Accordingly, the administrative law judge concluded that

plaintiff is not disabled within the meaning of the Social

Security Act. PageID 133. 

V.

DISCUSSION

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the

findings of the administrative law judge are supported by

substantial evidence and employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971). Substantial evidence

is more than a scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion. See Buxton v.

Halter, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Secretary of

Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This

Court does not try the case de novo, nor does it resolve

conflicts in the evidence or questions of credibility. See

Brainard v. Secretary of Health & Human Servs., 889 F.2d 679, 681

(6th Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.

1984).

In determining the existence of substantial evidence, this

Court must examine the administrative record as a whole. Kirk,

667 F.2d at 536. If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court

would decide the matter differently, see Kinsella v. Schweiker,

708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial

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evidence also supports the opposite conclusion. Longworth v.

Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).

In her Statement of Errors, plaintiff contends that the

administrative law judge should have found that plaintiff’s

posttraumatic stress disorder meets Listing 12.04. Doc. No. 12,

at PageID 666. Plaintiff also contends that the administrative

law judge failed to evaluate the combination of plaintiff’s

impairments. Id. at PageID 671. Finally, according to plaintiff,

the administrative law judge should have secured the testimony of

a medical expert. Id. at PageID 672.

The administrative law judge expressly found that

plaintiff’s mental impairments do not meet or equal, inter alia,

Listing 12.04. Page ID 126-28. The administrative law judge

specifically found that plaintiff’s impairments do not satisfy

the “B” criteria of the Listing because her mental impairments

“do not cause at least two ‘marked’ limitations or one ‘marked’

limitation and ‘repeated’ episodes of decompensation, each of

extended duration . . . .” Page ID 127. In making these

findings, the administrative law judge referred to evidence in

the record and those findings enjoy substantial support in the

record. Moreover, the state agency psychologists who reviewed

the record and to whose opinions the administrative law judge

gave “significant weight,” Page ID 131, also concluded that

plaintiff’s mental impairments neither met nor equaled Listing

12.04. See Page ID 521, 539. Under these circumstances, the

Court concludes that the administrative law judge did not err in

this regard. The fact that the record also contains evidence in

support of plaintiff’s claim does not, of course, require a

different conclusion. See Longworth, 402 F.3d at 595.

The Court also concludes that plaintiff’s second challenge

to the decision of the administrative law judge is without merit.

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The administrative law judge expressly referred to the

“combination of [plaintiff’s] impairments,” Page ID 126, and

therefore met his obligation in this regard. See Loy v. Sec’y of

Health & Human Servs., 901 F. 2d 1306 (6th Cir. 1990). 

Finally, the administrative law judge did not err in failing

to secure the testimony of a medical expert at the administrative

hearing. Plaintiff contends that the administrative law judge

“did not know all the facts pertaining to the Plaintiff’s mental

health impairments and should have had a medical expert, as

opposed to using his own lay opinion.” Statement of Errors, Page

ID 672. Plaintiff also appears to contend that the

administrative law judge should have retained the services of a

medical expert in connection with his consideration of the

Listing of Impairments. Id., Page ID 673. An administrative law

judge “has discretion to determine whether further evidence, such

as additional testing or exprt testimony, is necessary.” Foster

v. Halter, 279 F.3d 348, 355 (6th Cir. 2001)(citing 20 C.F.R. §§

404.1517; 416.917). As noted supra, state agency psychologists

evaluated plaintiff’s mental impairments by reference to the

Listing of Impairments. The record reflects sufficient evidence

of plaintiff’s impairments and the effects of those impairments

on plaintiff’s residual functional capacity. It cannot be said

that the administrative law judge relied on his own lay opinion

in evaluating the evidence. It follows that the administrative

law judge did not err in failing to secure the testimony of a

medical expert in this regard.

In sum, the Court concludes that the administrative law

judge applied all appropriate standards and his findings enjoy

substantial support in the record.

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It is therefore RECOMMENDED that the decision of the

Commissioner of Social Security be affirmed and that this action

be dismissed.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the

basis for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P.

72(b). Response to objections must be filed within fourteen (14)

days after being served with a copy thereof. F.R. Civ. P. 72(b).

The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver

of the right to de novo review by the District Judge and 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); Smith v. Detroit Federation of Teachers, Local 231 etc.,

829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

Date: February 4, 2013 s/Norah McCann King

Norah McCann King

United States Magistrate Judge

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