IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Christopher A. McLaughlin, :

 Plaintiff, :

 v. : Case No. 2:11-cv-454

Michael J. Astrue, : JUDGE JAMES L. GRAHAM

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Christopher A. McLaughlin, 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 July 19, 2006, and alleged that plaintiff became

disabled on April 1, 2006 due to mental impairments. 

After initial administrative denials of his claim, plaintiff

was given a hearing before an Administrative Law Judge on January

20, 2010. In a decision dated April 16, 2010, the ALJ denied

benefits. That became the Commissioner’s final decision on March

25, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on August 2, 2011. Plaintiff filed his

statement of specific errors on August 24, 2011. The

Commissioner filed a response on September 26, 2011. Plaintiff

filed a reply on October 12, 2011, 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 4 through 22 of the record. Plaintiff, who was 28 years

old at the time of the hearing and is a high school graduate,

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testified as follows.

After high school, plaintiff had some on-the-job training

with his uncle doing wood finishing, and he also served in the

Marines for almost two years. He did work for a few days in 2008

stacking boxes at a factory but quit that job. Before 2006, he

had worked as a laborer at a plastics plant. He left that job

for reasons related to his psychological condition. He also

worked in customer service at Kaufman’s, but was fired from that

job. 

Plaintiff testified that he has had psychological

difficulties all of his life. He believed his diagnoses included

bipolar disorder and an antisocial personality. He had a history

of marijuana use but had attained sobriety about ten months

before the hearing. He also has a tendency to get into fights

when he is around other people. Other people make him nervous. 

He takes a number of medications but needs to be reminded to do

so. 

III. The Medical Records

The medical records in this case are found beginning on page

244 of the administrative record. They can be summarized as

follows.

 Plaintiff was hospitalized in 2003 after taking an overdose

of prescription medications. The discharge note indicated a

“profound history of substance abuse.” He first sought mental

health treatment at age 14 or 15 and was treated for depression

and anger. He was discharged from the Marines after being

described as a “treatment failure.” He reported difficulty

concentrating in school and appeared to suffer from a conduct

disorder, an antisocial personality disorder, and both depressive

and manic episodes, as well as a history of abuse of various

drugs and alcohol, including dependence on marijuana and LSD. He

was treated with Lithium, which relieved his mania. He was

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directed to seek treatment from Netcare upon release. (Tr. 246-

49).

Chronologically, the next medical record is a report of a

consultative examination performed for the Bureau of Disability

Determination in 2006. Plaintiff reported his work history,

indicating that he was looking for work but that he was having

trouble leaving his house and that being around people was

stressful. He admitted to being dependent on marijuana. He had

not taken Lithium for more that two years. His memory was good

and he was focused to the interviewing. He admitted to being

hypersensitive, guarded and paranoid, and to carrying a weapon

with him at all times. The examiner, Mr. Degli, diagnosed

cannabis dependence, a depressive disorder not otherwise

specified, and a paranoid personality disorder, and rated

plaintiff’s GAF at 45. He thought plaintiff was not capable of

interacting with peers, supervisors, or the adult public in a

competitive work setting, and said that plaintiff’s ability to

maintain attention, concentration, persistence and pace was

“nil,” as was his ability to withstand the stresses and pressures

of a competitive workplace. (Tr. 255-58).

As plaintiff had testified, he received some substance abuse

counseling in 2006 from Community Solutions Association. His

psychological problems included oppositional behavior,

inattention, impulsivity, and disturbed reality contact. That

facility diagnosed him with cannabis dependence and borderline

personality disorder, with a rule out diagnosis of PTSD. After

an initial assessment he was accepted into a dual diagnosis

program. However, as of January, 2007, there did not appear to

be any treatment notes from such a program. (Tr. 264-75).

A state agency reviewer, Dr. Finnerty, reviewed the records

and reported on January 16, 2007 that they indicated the presence

of an affective disorder, a personality disorder, and a substance

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abuse addiction disorder. The affective disorder appears to have

been characterized as mild, but the personality disorder included

inflexible and maladaptive personality traits evidenced by

pathologically inappropriate suspiciousness or hostility. These

disorders caused moderate restrictions in activities of daily

living, in maintaining social functioning, and in maintaining

concentration, persistence and pace, but had not caused any

episodes of extended decompensation. They did not affect

plaintiff’s ability to understand and carry out short and simple

instructions or to sustain an ordinary routine without special

supervision, but they did limit his ability to get along with

others and to complete a workday or work week without

interruptions from his symptoms and to perform at a consistent

pace. Dr. Finnerty explained that the more negative assessment

from the consultative examiner appeared not to take into account

the impact of plaintiff’s chronic substance abuse and the fact

that he showed rapid improvement when treated with medications or

when remaining sober. He thought plaintiff could do simple

repetitive tasks in settings with superficial contact with others

and without fast paced production quotas. (Tr. 277-94). That

conclusion was later affirmed by another reviewer, Dr.

Casterline.

The next group of records come from Valley Counseling, where

plaintiff sought treatment after he found the substance abuse

counseling provided by Community Solutions to be ineffective. 

Those records show that plaintiff was admitted to counseling on

February 27, 2007 with a diagnosis of a mood disorder and a GAF

of 50. He reported difficulty sleeping and dealing with others. 

He also had trust issues and reported hearing voices, although he

denied it was other people’s voices he was hearing. There is

only one treatment note from 2007, and it does little more than

repeat the diagnoses and indicate what medication was prescribed. 

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(Tr. 341-57).

Finally, the file contains some counseling notes from Six

County, Inc. dated in 2008 and 2009. Collectively, they show

that plaintiff’s mood improved slightly with medication, that he

was still drinking occasionally, that he was depressed, angry and

paranoid, that he did report hallucinations and hearing voices,

that he had fleeting thoughts of suicide, that his marijuana

intake had gradually been reduced (although he was having some

withdrawal symptoms), that he spent 70 days in jail, and that he

was going to be started on new medications. (Tr. 361-78).

IV. The Vocational Testimony

Mr. Kiger, a vocational expert, also testified at the

administrative hearing. His testimony begins at page 25. He

noted that plaintiff had worked as an inspector, a customer

service representative, and a general laborer. The jobs were

either light or medium, and either unskilled or semi-skilled. If

he were limited as described in Exhibit 8F, the evaluation done

by Dr. Finnerty, the only job he might be able to return to would

be the laborer job, and that would depend upon how much he had to

interact with others. His specific testimony on this point was

that he did not know enough about plaintiff’s past laborer job to

judge how much interaction with others it required, but that in

“[s]ome laborer positions you’re pretty much on your own. You

may have another person or two that are in the vicinity, but

they’re not right next to you. I mean, they vary, those type of

positions.” (Tr. 27). If, however, plaintiff was limited to the

extent he stated in his testimony, he could not work. 

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 41

through 51 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

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met the insured requirements of the Social Security Act through

September 30, 2010. Next, he found that plaintiff had not

engaged in substantial gainful activity from his alleged onset

date of April 1, 2006 through the date of the decision. As far

as plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including personality disorder

with paranoia, borderline and anti-social features, substance

abuse disorder currently in early remission, post traumatic

stress disorder, and depression. 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 full range of work at all exertional levels

and could do simple to more complex tasks, was able to

concentrate when not abusing alcohol or drugs, and had what the

administrative decision described as a “marked ability to work

and deal with people secondary to his personality disorder as

complicated historically by the abuse of drugs.” (Tr. 45). He

could handle low stress work without high production standards if

he refrained from substance abuse. The ALJ accepted the

vocational expert’s testimony that someone with such limitations

could perform plaintiff’s past work as a general laborer. As a

result, the ALJ concluded that plaintiff had not demonstrated an

entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises the

following issues. First, he argues that the ALJ erred by posing

an incomplete hypothetical to the vocational expert and by

substituting his own lay opinion for that of the expert. He also

argues that the ALJ should have found that his impairment met

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Section 12.08 of the Listing of Impairments, which deals with

personality disorders. The Court 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

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).

Plaintiff’s first argument, as described in his statement of

errors and in the reply brief, can be summarized as follows. The

hypothetical question posed to the vocational expert asked him to

assume that plaintiff’s limitations were those described in

Exhibit 8F, the residual functional capacity form completed by

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Dr. Finnerty, the state agency reviewer. In response, the

vocational expert expressed some hesitancy, couching his answer

in terms of possibilities. After the hearing, in the

administrative decision, the ALJ found that plaintiff suffered

from a “marked” impairment in his ability to maintain social

functioning, which is a different finding on that subject from

that contained in Exhibit 8F. Because the vocational expert

never answered a question which asked him to assume that

particular limitation, plaintiff argues that the ALJ could not

properly rely on the vocational expert’s testimony in terms of

whether he could return to his prior job as a laborer. 

The Commissioner counters this argument by noting that

despite the difference in Dr. Finnerty’s assessment of

plaintiff’s abilities in the area of social functioning and the

ALJ’s assessment, the ALJ made it clear that he concluded that

plaintiff could still perform work which required only

superficial interaction with others. Because that was also Dr.

Finnerty’s conclusion, the Commissioner argues that there was no

material discrepancy between the question which the vocational

expert answered and any question which would have been based on

the ALJ’s findings, so that his testimony was a reliable basis on

which to conclude that plaintiff could do his past relevant work.

There is little question that this is not a perfect

administrative record. In fact, it appears that the

administrative decision incorrectly substituted the word

“ability” for the word “inability” in the key finding about

plaintiff’s limitations in the area of working and dealing with

people; the finding that plaintiff had a marked “ability” in this

area makes no sense, since the adjective “marked” applies only to

inabilities and not abilities. Further, the ALJ, in using the

modifier “marked,” was presumably referring to that category of

limitation as it is described in the applicable regulation,

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which, in this case, is found in the preamble to Section 12.00 of

the Listing of Impairments. There, a marked limitation in any

area is described as one which is “more than moderate but less

than extreme” and which reflects a “degree of limitation [which]

interfere[s] seriously with your ability to function

independently, appropriately, effectively, and on a sustained

basis.” In the area of maintaining social functioning, that

preamble notes that no specific set of behaviors is encompassed

by the definition, but, as an example, someone who is “highly

antagonistic, uncooperative, or hostile” may have a marked

impairment in social functioning even if such behavior is

tolerated by some people because it is “not acceptable in other

social contexts.” Given this definition, it is somewhat

confusing that the ALJ found that the only specific restriction

on plaintiff’s work abilities due to his “marked” limitation was

the need to avoid jobs which required “high levels of personal

interaction.” (Tr. 44). That is either equivalent to, or less

restrictive than, Dr. Finnerty’s conclusion that plaintiff could

perform work “in settings with superficial interactions with

others,” Tr. 294, yet Dr. Finnerty rated plaintiff’s impairment

in the area of maintaining social functioning as only moderately

limited rather than marked. This internal inconsistency suggests

that a remand for clarification, rather than an affirmance

despite the evident inconsistency in the ALJ’s findings, is

warranted.

In addition to this inconsistency, there are other troubling

aspects about the way in which the ALJ dealt with plaintiff’s

social interaction limitations. For example, Dr. Finnerty’s

views about plaintiff’s limitations in the area of social

functioning, and his rejection of the consultative examiner’s

more pessimistic view, appears to be based in part on a

comparison of plaintiff’s abilities with or without consideration

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of his substance abuse. That is, Dr. Finnerty stated that the

consultative examiner “appears to ignore any possible impact from

the [claimant’s] chronic substance use.” (Tr. 294). He made the

same comment about plaintiff’s depression and manic episodes and

noted that his other “characterological concerns” were overlaid

“on top of serious substance abuse dependence as a factor in

[plaintiff’s] difficulties.” Id. Nevertheless, pointing out

that plaintiff had improved rapidly with treatment in the past,

Dr. Finnerty then reached his own conclusions about plaintiff’s

work capabilities, although it is not entirely clear whether

those conclusions reflect how well plaintiff could perform if he

stopped his substance abuse, or with his substance abuse. 

Similarly, the ALJ’s decision is replete with reference to

substance abuse, but not clear on how the ALJ’s views of

plaintiff’s substance abuse problems factored into the ultimate

decision, notwithstanding the regulatory mandate that in a case

where substance abuse is present and may be disabling, the

Commissioner must determine if substance abuse is a “contributing

factor material to the determination of disability” and “whether

we would still find you disabled if you stopped using drugs or

alcohol.” 20 C.F.R. §404.1535. 

Additionally, the vocational expert’s testimony was, as

plaintiff points out, phrased in terms of possibilities, clearly

reflected a lack of information about the specific laborer job

plaintiff performed, and, at best, supported a finding that the

degree of personal interactions in such jobs varies, and that

there are some in which “you are pretty much on your own.” It is

not entirely clear whether this fairly imprecise description of

such jobs comports with either Dr. Finnerty’s or the ALJ’s

description of plaintiff’s social interaction limitations. A

remand will assist in resolving these conflicts and ambiguities

and produce a decision much more susceptible to meaningful

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judicial review. Cf. McHugh v. Astrue, 2011 WL 6130824, *9 (S.D.

Ohio Nov. 15, 2011), adopted and affirmed 2011 WL 6122758

(S.D.Ohio Dec. 8, 2011)(“‘“[W]here the ALJ's decision ... is so

poorly articulated as to prevent meaningful review, the case must

be remanded.’”), quoting Steele v. Barnhart, 290 F.3d 936, 940

(7th Cir. 2002).

Plaintiff has also raised an issue about whether the ALJ was

required to find, in accordance with the consultative examiner’s

opinion, that he met the requirements for disability set forth in

Section 12.08 of the Listing of Impairments. Plaintiff

criticizes the ALJ for crediting the opinion of Dr. Finnerty

instead and for failing to give adequate reasons why more weight

was assigned to Dr. Finnerty’s opinion even though he never

examined the plaintiff.

Although the “good reasons” rule found in 20 C.F.R.

§404.1527(d) does not apply to the opinions of non-treating

sources, such opinions must be considered by an ALJ, and the

failure to discuss them at all can be grounds for a remand. See,

e.g., Karger v. Comm’r of Social Security, 414 Fed. Appx. 739

(6th Cir. February 10, 2011). The ALJ did discuss the

consultative examiner’s findings, however, indicating that he

took them into account but gave them little weight due primarily

to the fact that Mr. Degli did not separate out the impact of

plaintiff’s substance abuse from the impact of his other

impairments. However, that is not necessarily the correct way to

treat such an opinion if it is otherwise credible; rather,

§404.1535 seems to suggest that the ALJ should make findings

about disability taking into account, as Mr. Degli did, the

impact of substance abuse, and, if that led to a finding of

disability, determining the extent to which plaintiff remained

impaired without consideration of his substance abuse. That

procedure was not followed here. Consequently, while the Court

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cannot find that the ALJ was absolutely required to adopt Dr.

Degli’s findings and to determine that plaintiff actually

qualified for benefits under Section 12.08 of the Listing, it

would appear that on remand the ALJ should articulate more

clearly if he credited the examiner’s opinions and then

subtracted the impact of plaintiff’s substance abuse, or whether

he did not credit Dr. Degli’s findings; if the latter is so,

there should be enough of an explanation for why that occurred so

that the Court can perform the required substantial evidence

review, even if the ALJ need not provide the same amount of

reasoning as when rejecting the opinion of a treating source. 

 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 for further proceedings

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

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

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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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