IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Melissa Scott, :

Plaintiff : Civil Action 2:11-cv-00489

v. : Judge Frost

Michael J. Astrue, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Melissa Scott brings this action under 42 U.S.C. §§405(g) and 1383(c)(3)

for review of a final decision of the Commissioner of Social Security denying her application for Social Security Disability and Supplemental Security Income benefits. This

matter is before the Magistrate Judge for a report and recommendation on the parties’

cross-motions for summary judgment.

Summary of Issues. 

Plaintiff Melissa Scotts maintains she became disabled at age 45 by injuries sustained in a bus accident, headaches, new, low back and leg pain, diabetes, hypertension,

depression, anxiety and post traumatic stress disorder. The administrative law judge

found that Scott retained the ability to perform work having medium exertional

demands that involves little or no contact with the public.

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

• The administrative law judge erred at step two by failing to make a finding as

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to whether Scott's back and neck pain was severe and/or whether her posttraumatic stress disorder was severe;

• The administrative law judge erred at step three in failing to assess whether

Scott's physical impairments met or equaled the Listings of Impairments, or

combined with her mental impairments to meet or equal the Listings;

• The administrative law judge erred in rejecting the opinion of Pamela SayreButts, LISW, Scott's social worker counselor; and,

• The administrative law judge's controlling hypothetical question and his

residual functional capacity finding did not adequately accommodate the

limitations he found.

Procedural History. Plaintiff Melissa Scott filed her application for disability

insurance benefits on January 11, 2007, alleging that she became disabled on April 1,

2004, at age 45, by injuries sustained in a bus accident, headaches, back and leg pain and

post traumatic stress disorder. (R. 133, 185.) The application was denied initially and

upon reconsideration. Plaintiff sought a de novo hearing before an administrative law

judge. On November 9, 2009, an administrative law judge held a hearing at which

plaintiff, represented by counsel, appeared and testified. (R. 24.) A vocational expert 

also testified. On April 5, 2010, the administrative law judge issued a decision finding

that Scott was not disabled within the meaning of the Act. (R. 15.) On April 1, 2011, the

Appeals Council denied plaintiff’s request for review and adopted the administrative

law judge’s decision as the final decision of the Commissioner of Social Security. (R. 1-

3.)

Age, Education, and Work Experience. Melissa Scott was born August 22, 1958. 

 (R. 133.) She has a high school education and completed two years of college. (R. 191.) 

She has worked as a behavioral health technician, cafeteria worker, cashier, community

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organizer, home health aide, security officer and teacher's assistant. She became unable

to work April 1, 2004. (R. 186-87.) 

Plaintiff’s Testimony. The administrative law judge fairly summarized Scott's

testimony as follows:

At the hearing, Ms. Scott testified about her involvement in a bus

accident in 2004 in which she was injured. She is now limited in her

neck movements and she has cervical pain that increases with stress

and weather changes. She put her pain level on a bad day at "7" or "8"

and she alleged she has more bad days than good. Ms. Scott attested

that her neck and back pain prevented her from working. She also

has tension headaches that have increased since her accident. There

are three or four headaches a week and she needs to lie down when

the occur.

Her diabetes forces her to eat five small meals a day. If she misses a

meal, she becomes dizzy and she becomes in danger of passing out.

Her standing limit was given as 4 hours. She denied being able to

carry things because of the back and neck pain that also restricts her

sitting. 

Ms. Scott spoke of her depression that causes her to self-isolate and

of her PTSD. Six months prior to her bus accident, she had been

raped. Both events give her anxiety attacks and her depression

impedes her concentration and retention of information.

(R. 12.) At the November 2009 hearing before the administrative law judge, Scott testified that she had been working for the past year caring for her mother. She worked 26

hours a week and was paid $200 a week by a social services agency. (R. 44.)

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence.

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Physical Impairments. 

Wooster Community Hospital. On April 1, 2004, plaintiff was treated in the

emergency department following a bus accident. The bus, in which she was a passenger, went off the road and rolled over. Plaintiff was pushed against the side wall of the

bus and other passengers landed on top of her. Within 20 minutes of the accident, her

left shoulder began to hurt. She was diagnosed with a sprain of the left shoulder and

neck. (R. 278-80.)

M.P. Patel, M.D. On May 7, 2004, Dr. Patel, evaluated plaintiff's injuries

sustained in the bus accident. Scott reported persistent neck pain, which was described

as sharp, burning, and extending into both arms. She had episodes of paresthesia.

Looking up or down or turning sideways increased her pain. She reported recurring

mid-low back pain. At times, the pain extended to both hips, buttocks, and posterior

thighs. Pain was aggravated with bending or lifting. She had difficulty climbing or

descending stairs. 

On physical examination, plaintiff's cervical spine was tender in the midline over

the spinous processes and in the adjacent paraspinous muscles from C3 to C7. There

was muscular tightness in the paracervical region, most evident with neck hyperflexion.

Flexion was restricted 30 degrees and extension 40 degrees. Right and left lateral flexion

were 30 degrees. Right and left lateral rotation was 30 degrees. Deep tendon reflexes

were 1+ in both upper extremities. Dr. Patel diagnosed a sprain/strain of the cervical

and dorsal-lumbosacral spines. 

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On June 4, 2004, Dr. Patel re-evaluated plaintiff. Scott reported that she had fair

relief from symptoms and that she did not take any medications. Her neck and upper

back pain was localized over the based of the neck on both sides and the right upper

paradorsal region. She had some difficulty turning her neck fully to the right side. Her

low back pain was minimal. On examination, there was spasm and tenderness of the

lower paracervical muscles bilaterally. There was tenderness over the right cervicaltrapezius junction and right suprascapular region. Her right lateral flexion was 30

degrees. her right lateral rotation was 60 degrees. She had normal mobility of the

lumbar spine, but there was pain and discomfort at the extreme range of motion. (R.

289-91.)

On November 11, 2004, Dr. Patel examined plaintiff. Scott reported that she had

recurring neck and back pain, at times extending into both shoulders, hips, and buttocks. Examination of the thoracic spine revealed minimum tenderness and a normal

range of mobility. There was spasm and tenderness of the lower paracervical and

paralumbar muscles bilaterally. Her mobility was restricted and painful. Deep tendon

reflexes in the upper and lower extremities were 1+ bilaterally. On November 18, 2004,

Scott indicated that she had some relief with medications and Biofreeze. Dr. Patel

indicated that his objective findings were consistent with some improvement in her

condition with respect to the severity of spasm and tenderness and her improved

mobility. (R. 292-93.) 

Jeffrey Dunnigan, D.C. On March 15, 2007, Dr. Dunnigan, a chiropractor,

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completed a form concerning his treatment of plaintiff from April 16 through September 24, 2004. He reported that plaintiff experienced off and on pain and weakness.

She had pain on cervical flexion and rotation. (R. 310.)

Franklin D. Krause, M.D. On April 24, 2007, Dr. Krause examined Scott for the

Bureau of Disability Determination. He noted that plaintiff had occasional symptoms in

her neck and back without evidence of reflex asymmetry, atrophy, or abnormality in

gait or station. Plaintiff carried on all activities of daily living. She cooked, cleaned, and

shopped. (R. 314-15.)

Jason Collins, M.D. On August 25, 2008, Dr. Collins began treating plaintiff.

Plaintiff was recently diagnosed with diabetes. (R. 425-26.)

Suman Sharma, M.D. Dr. Sharma provided treatment notes from December 15,

2008 through November 12, 2009. Plaintiff was treated for diabetes and hypertension.

(R. 467-76.) Plaintiff reported that she was having pain and fatigue. (R. 467.) On March,

2009, plaintiff reported that her pain was a 9 on a ten point scale, although she noted

that the pain came and went. (R. 468.) On April 24, 2009, plaintiff reported a burning

sensation in her feet. Dr. Sharma believed that it was likely early polyneuropathy as a

result of diabetes. (R. 470.) 

Psychological Impairments. 

David V. House, Ph.D. On May 1, 2007, Dr. House, a psychologist, evaluated

Scott for the Bureau of Disability Determination. On mental status examination,

plaintiff reported 5-6 hours of broken sleep. Her appetite was inconsistent, but she ate a

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lot if she was depressed. She reported being depressed “off and on.” She was hopeful

about the future and cared about what happened. She denied any significant feelings of

guilt. She reported episodic anxiety attacks. Following the bus accident, she was afraid

to drive and she had flashbacks. 

Scott was oriented in four spheres. Her concentration and attention were mildly

to moderately limited. At times her thinking was somewhat fragmented and she was

not focused, which contributed to a somewhat odd functioning. Dr. House concluded

that plaintiff’s concentration and attention were mildly to moderately limited primarily

due to anxiety and obsessive compulsive behavior. Her ability to understand and follow

directions was not limited, but she might have some difficulty, due to compulsivity,

following directions beyond 4-5 steps. Her ability to withstand stress and pressure

appeared moderately limited due to anxiety issues. Her ability to relate to others and

deal with the general public was mildly limited due to anxiety issues. Her compulsivity

gave her a rather odd quality in terms of her interactions. Her ability to adapt was

moderately limited. Dr. House diagnosed obsessive compulsive disorder and

dyssomnia. Her deferred diagnosing a mood disorder, not otherwise specified. Dr.

House assigned her a Global Assessment of Functioning (“GAF”) score of 60. (R. 341-

45.) 

Vicki Casterline, Ph.D. On May 31, 2007, Dr. Casterline completed a mental

residual functional capacity assessment and a psychiatric review technique. Dr.

Casterline opined that plaintiff Scott had moderate limitations in her ability to

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understand and remember detailed instructions. With respect to sustained concentration and persistence, plaintiff was moderately limited in her abilities to carry out

very short and simple instructions, to maintain attention and concentration for extended periods, and to complete a normal workday and workweek without interruptions

from psychologically based symptoms and to perform at a consistent pace without an

unreasonable number and length of rest periods. Plaintiff had no significant limitations

with respect to social interaction. Plaintiff was moderately limited in her abilities to

respond appropriately to changes in the work setting and to set realistic goals or make

plans independently of others. Dr. Casterline noted that plaintiff reported that she was

independent in self-care, she drove, cooked, cleaned, worked out, and attended Kent

State University. At the consultative examination, plaintiff was dressed appropriately

and was neat and clean. There was no evidence of a thought disorder, but she had an

odd presentation. Dr. Casterline concluded that plaintiff was able to perform simple

repetitive tasks and more complex tasks of a similar nature. She could interact with

others on a superficial level. She could live independently. Plaintiff would work best at

tasks that were static in nature and had easily explained changes. She could work at a

steady pace to sustain simple tasks. (R. 320-37.)

Coleman Professional Services. On August 23, 2007, Scott had an diagnostic

assessment at Coleman Professional. Plaintiff reported anxiety, difficulty sleeping, and

always feeling as if something bad was going to happen. She had low motivation and

poor concentration. She was depressed, moody, and anxious. She had panic attacks and

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felt overwhelmed. She was raped and sexually molested as a child. Plaintiff was

recommended to begin cognitive behavioral therapy sessions every two weeks. (R. 347-

54.) 

Joseph D. Perry, Ph.D. On December 27, 2007, Dr. Perry, a psychologist, performed a psychological evaluation at the request of the Bureau of Disability Determination.

Plaintiff reported experiencing depression and anxiety. Her appetite and sleep was

poor. Despite her reported anxiety, plaintiff appeared self-confident and outgoing. With

respect to her activities of daily living, plaintiff reported that she went to bed at about 2-

3:00 a.m. She had difficulty sleeping due to pain and anxiety. She was frequently

fatigued during the day. She attended Kent State University from 9:00 a.m. to 4:00 p.m.

Her other activities included housecleaning and studying. She reported that she had

some friends and interacted with them. She took walks, watched movies and rode her

bicycle. Dr. Perry diagnosed anxiety disorder, not otherwise specified. He assigned a

GAF score of 80. He noted that she was able to function at a high level given that she

attended school full-time and worked at her church on a part-time basis. (R. 386-90.)

Roseann Umana, Ph.D. On January 19, 2008, Dr. Umana completed a psychiatric

review technique. Dr. Umana noted that in a December 2007 examination, Scott reported that she was seeking employment beyond her part-time position. Her ability to relate

to others was unimpaired. Her abilities to understand and follow instructions and to

perform tasks were unimpaired. Her ability to withstand stress and pressures was

mildly limited. Dr. Umana opined that plaintiff’s condition had improved rather than

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worsened. She concluded that her condition was not severe. (R. 392-405.) 

Lisa Stines, Ph.D. In a January 21, 2008 letter, Dr. Stines, a psychologist, reported

that Scott had been involved in a study concerning treatment and post-traumatic stress

disorder. Plaintiff's post-traumatic stress disorder was the result of a Greyhound bus

accident. Plaintiff reported experiencing nightmares, recurrent thoughts about the

trauma, loss of interest in activities, difficulty sleeping, and other symptoms of posttraumatic stress disorder. (R. 295.) 

Scioto Paint Valley Mental Health Center. On February 3, 2009, Scott underwent

a diagnostic assessment. The assessment was not signed. Soctt identified her current

problem as severe anxiety. She reported that her short-term memory was impaired. She

had poor sleep and a fair appetite. Her attitude was described as cooperative and

motivated. Her mood was anxious and depressed. She was diagnosed with posttraumatic stress disorder and an anxiety disorder not otherwise specified. She was

assigned a GAF score of 54.

A February 18, 2009 psychotherapy progress note indicated that plaintiff was

applying for disability, which she viewed as temporary while she got back on her feet,

finished school and found a job where she did not have to be around people as much.

(R. 453.) 

An November 5, 2009 medical statement completed by Pamela Sayre-Butt,

L.I.S.W., indicated that plaintiff exhibited the following symptoms: anhedonia, sleep

disturbance, decreased energy, difficulty concentrating or thinking, apprehensive

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expectation, psychomotor agitation or retardation, autonomic hyperactivity, recurrent

and intrusive recollections of a traumatic experience, which are a source of marked

distress. Ms. Sayre-Butt also indicated that the need to rule out whether plaintiff was

experiencing severe panic attacks manifested by a sudden unpredictable onset of

intense apprehension, fear, terror and sense of impending doom occurring on the

average of at least once a week. Ms. Sayre-Butt opined that Scott had moderate

restriction of daily activities and marked difficulty in maintaining social functioning.

She exhibited deficiencies in concentration, persistence, or pace resulting in the frequent

failure to complete tasks in a timely manner. She had repeated episodes of deterioration

or decompensation. (R. 455-56.) 

A September 29, 2009 treatment notes indicates that plaintiff was arrested and

charged with driving under the influence of alcohol. (R. 460.)

Administrative Law Judge’s Findings. 

1. The claimant meets the insured status requirements of the Social

Security Act through December 31, 2008.

2. The claimant has not engaged in substantial gainful activity since

April 1, 2004, the alleged onset date (20 CFR 404.1571 et seq., and

416.971 et seq.).

3. The claimant has the following severe impairments: Affective

Mood Disorder, Anxiety Disorder, Malingering, hypertension, and

diabetes (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of

impairments that meets or medically equals one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

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5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform the full range of medium work as defined in 20 CFR

404.1567(c) and 416.967(c). The claimant can lift/carry 25 pounds

frequently and 50 pounds occasionally. She can stand/walk or sit

for 6 hours in an 8-hour workday. She cannot climb ropes, ladders,

or scaffolds and she cannot be exposed tp unprotected heights or

moving machinery. The claimant can have little or no contact with

the public.

6. The claimant is unable to perform any past relevant work (20 CFR

404.1565 and 416.965).

7. The claimant was born on August 22, 1958 and was 45 years old,

which is defined as a younger individual age 18-49, on the alleged

disability onset date. The claimant subsequently changed age

category to closely approaching advanced age (20 CFR 404.1563

and 416.963).

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of

disability because applying the Medical-Vocational Rules directly

supports a finding of "not disabled," whether or not the claimant

has transferable job skills (See SSR 82-41 and 20 CFR Part 404,

Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 404.1569, 404.1569(a), 416.969, and 416.9699(a)).

11. The claimant has not been under a disability, as defined in the

Social Security Act, from April 1, 2004, through the date of this

decision (20 CFR 404.1520(g) and 416.920(g)).

(R. 10-15.) 

Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings

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of 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 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge erred at step two by failing to make a finding as

to whether Scott's back and neck pain was severe and/or whether her posttraumatic stress disorder was severe. Plaintiff argues that a determination that

an impairment is not severe requires a careful evaluation of the medical

findings and an informed judgment about its limiting effects in the

individual’s physical ability to perform basic work activities. Plaintiff

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maintains that the administrative law judge’s discussion concerning step two

was non-existent and allows no insight into his finding. Because of the error at

step two, the administrative law judge failed to consider whether plaintiffs

back and neck pain and PTSD met or equaled the Listings, either singly or in

combination with her other impairments. The administrative law judge is

required to consider the impact of non-severe impairments at each subsequent

step. Plaintiff maintains that the administrative law judge erred by completely

ignoring or overlooking Scott’s diagnoses of back and neck pain and PTSD at

step two and every other step of the sequential process. 

• The administrative law judge erred at step three in failing to assess whether

Scott's physical impairments met or equaled the Listings of Impairments, or

combined with her mental impairments to meet or equal the Listings. Plaintiff

argues that the administrative law judge skipped an entire step of the

necessary analysis and that this case must be remanded to correct the error.

• The administrative law judge erred in rejecting the opinion of Pamela SayreButt, LISW, Scott's social worker counselor. Plaintiff argues that the

administrative law judge erred when he stated that Ms. Sayre-Butt’s opinion

could not be granted significant weight because she was a non-medical

professional. Plaintiff maintains that as a medical source, her opinion was

entitled to even greater weight than that of a treating source if her opinion was

provided better supporting evidence and a better explanation. 

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• The administrative law judge's controlling hypothetical question and his

residual functional capacity finding did not adequately accommodate the

limitations he found. Although the administrative law judge concluded that

plaintiff had moderate limitations in the area of concentration, persistence or

pace at step three, in formulating a residual functional capacity, plaintiff was

only restricted to a simple, routine work environment. Plaintiff maintains that

the residual functional capacity formulated by the administrative law judge

fails to address her moderate limitations.

Analysis. A sequential evaluation process is employed to determine whether an

individual is disabled. 20 C.F.R. § 404.1520. First, the Commissioner determines whether

the individual is currently engaging in substantial gainful activity; if so, a finding of

nondisability is made and the inquiry ends. Second, if the individual is not currently

engaged in substantial gainful activity, the Commissioner must determine whether the

individual has a severe impairment or combination of impairments; if not, then a

finding of nondisability is made and the inquiry ends. Third, if the individual has a

severe impairment, the Commissioner must compare it to those in the Listing of

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. If the impairment meets or

equals any within the Listing, disability is presumed and benefits are awarded. 20

C.F.R. § 404.1520(d). Fourth, if the individual's impairments do not meet or equal those

in the Listing, the Commissioner must determine whether the impairments prevent the

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performance of the individual's regular previous employment. If the individual is

unable to perform the relevant past work, then a prima facie case of disability is

established and the burden of going forward with the evidence shifts to the

Commissioner to show that there is work in the national economy which the individual

can perform. Lashley v. Secretary of H.H.S., 708 F.2d 1048 (6th Cir.1983); Kirk v. Secretary

of H.H.S., 667 F.2d 524 (6th Cir.1981).

Here, the administrative law judge failed to make any finding at step two with

respect to whether plaintiff’s back and neck pain and post-traumatic stress disorder

constituted a severe impairment. This failing does not constitute reversible error. In

Maziarz v. Secretary of Health & Human Services, 837 F.2d 240 (6th Cir. 1987), the Sixth

Circuit concluded that there was no reversible error when the Secretary failed to find

that a claimant’s cervical condition constituted a severe impairment when he continued

with the remaining steps to determine the claimant’s residual functional capacity. Id. at

244. Fisk v. Astrue, 253 Fed. Appx. 580, 583, 2007 WL 3325869, at *4 (6th Cir. 2007)

(“[W]hen an ALJ considers all of a claimant's impairments in the remaining steps of the

disability determination, an ALJ's failure to find additional severe impairments at step

two ‘[does] not constitute reversible error.’”)(quoting Maziarz v. Secretary of Health &

Human Services, 837 F.2d 240, 244 (6th Cir.1987)).

With respect to step three of the sequential evaluation, the administrative law

judge failed to consider whether plaintiff’s physical impairments singly or in

combination with her other impairments met or equaled a Listing. The administrative

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law judge found that plaintiff’s hypertension and diabetes constituted severe

impairments. The decision, however, contains no discussion as to whether these

impairments met or equaled a listed impairment. Although plaintiff has failed to put

forth any argument that she met or equaled the relevant listings for diabetes or

hypertension, the administrative law judge erred by skipping a step of the analysis

required by the Commissioner’s regulations. On remand, the administrative law judge

must actually evaluate the evidence, compare it to the Listings and provide a rationale

for his decision to allow for meaningful judicial review. Reynolds v. Commissioner of

Social Security, 424 Fed. Appx. 411, 416 (6th Cir. 2011). 

The administrative law judge rejected the opinion of Ms. Sayre-Butt on the basis

that she was not an acceptable medical source:

The “marked” mental limitations the claimant received from the Scioto

Paint Valley Medical Center can be given only little or no weight. The

assessment is signed by a non-medical professional (Exhibit 21F, p. 3) and,

under Social Security regulations, such a person cannot be granted

significant opinion weight.

(R. 13). This statement reflects a misunderstanding of the regulations. Section 404.1513

of title 20 of the Code of Federal Regulations states:

In addition to evidence from the acceptable medical sources listed in

paragraph (a) of this section, we may also use evidence from other sources

to show the severity of your impairment(s) and how it affects your ability

to work. Other sources include, but are not limited to--

(1) Medical sources not listed in paragraph (a) of this section (for example,

nurse-practitioners, physicians' assistants, naturopaths, chiropractors,

audiologists, and therapists). . . .

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20 CFR § 404.1513(d)(1). Only “acceptable medical sources” can be considered a treating

source whose opinion may be entitled to controlling weight. SSR 06-03p; 20 C.F.R. §§

404.1527(d) & 416. 927(d). Evidence from other sources, however, may be used to

demonstrate the severity of an impairment or how it impacts that individual’s ability to

function. Social Security Ruling 06-03p states:

For opinions from sources such as teachers, counselors, and social workers

who are not medical sources, and other non-medical professionals, it

would be appropriate to consider such factors as the nature and extent of

the relationship between the source and the individual, the source's

qualifications, the source's area of specialty or expertise, the degree to

which the source presents relevant evidence to support his or her opinion,

whether the opinion is consistent with other evidence, and any other

factors that tend to support or refute the opinion.

An opinion from a “non-medical source” who has seen the claimant in his

or her professional capacity may, under certain circumstances, properly be

determined to outweigh the opinion from a medical source, including a

treating source. For example, this could occur if the “non-medical source”

has seen the individual more often and has greater knowledge of the

individual's functioning over time and if the “non-medical source's”

opinion has better supporting evidence and is more consistent with the

evidence as a whole.

SSR 06-03p at *5-6. Here, the administrative law judge was under the mistaken belief

that Ms. Sayre-Butt’s opinion could be given no weight because she was not an

acceptable medical source. As a result, he failed to evaluate her opinion and consider all

the evidence in the record. 

In determining whether a claimant is disabled, an administrative law judge

makes a residual functional capacity determination. That finding is an "assessment of

the claimant's remaining capacity for work" once his or her limitations have been taken

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into account. 20 C.F.R. § 416.945. It is "a more complete assessment of her physical and

mental state and should include an ‘accurate[ ] portray[al] [of her] individual physical

and mental impairment[s].' Varley, 820 F.2d at 779; Myers v. Weinberger, 514 F.2d 293,

294 (6th Cir.1975) (per curiam)." Howard v. Commissioner of Social Security, 276 F.3d 235,

239 (6th Cir. 2002).

When a vocational expert testifies, the administrative law judge asks the expert

to assume certain facts about the claimant's work abilities. The facts in this hypothetical

are the administrative law judge's residual functional capacity findings. The

administrative law judge must accurately state each limitation that affects the claimant's

ability to work. If there is not substantial evidence supporting the limitations the

administrative law judge includes in the hypothetical to the vocational expert, then the

expert's testimony is not substantial evidence supporting the Commissioner's decision

denying benefits. Howard, 276 F.3d at 240-42. If a limitation that substantially affects

the claimant's ability to work is established by uncontroverted medical evidence, it is

error for the administrative law judge to omit this limitation from the hypothetical

given the administrative law judge. 276 F.3d at 242. 

Here, the administrative law judge concluded that plaintiff had moderate

difficulties with regard to concentration, persistence or pace. In his hypothetical posed

to the vocational expert, the administrative law judge asked him to consider an

individual “mentally limited to a simple, routine work environment, having little or no

contact with the public.” (R. 47.) Plaintiff maintains that the hypothetical fails to

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account for her moderate limitations in concentration, persistence or pace. 

In Ealy v. Commissioner of Social Security, 594 F.3d 504 (6th Cir. 2010) cited a

district court decision that held that a hypothetical limiting claimants to jobs entailing

no more than simple routine, unskilled work is not adequate to convey a moderate

limitation in ability to concentrate, persist and keep pace. Id. at 516-17 (quoting Edwards

v. Barnhart, 383 F. Supp. 2d 920, 930-31 (E.D. Mich. 2005). On remand, the

administrative law judge’s hypothetical to the vocational expert should reflect plaintiff’s

limitations in concentration, persistence, and pace.

From a review of the record as a whole, I conclude that this case should be

REMANDED. On remand, the administrative law judge must evaluate the evidence

with respect to plaintiff’s physical impairments, compare it to the Listings and provide

a rationale for his decision to allow for meaningful judicial review; evaluate Ms. SayreButt’s opinion in accordance with Social Security Ruling 06-03p; and present the

vocational expert with a hypothetical that represents all of plaintiff’s limitations.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, 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)(B); Rule 72(b),

Fed. R. Civ. P.

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

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Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

 s/Mark R. Abel 

United States Magistrate Judge 

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