Augustyn v. Social Security, Commissioner of

Filing 19

Memorandum and Order 16 Adopting Report and Recommendation, Denying Plaintiff's 11 Motion for Summary Judgment and Granting the Commissioner's 15 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMIE C. AUGUSTYN,
Plaintiff,

Case No: 12-13757

vs.

HON. AVERN COHN

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________/

MEMORANDUM AND ORDER ADOPTING
REPORT AND RECOMMENDATION (Doc. 16),
DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (Doc. 11)
AND GRANTING THE COMMISSIONER’S
MOTION FOR SUMMARY JUDGMENT (Doc. 15)
I. INTRODUCTION
This is a Social Security case. Plaintiff Amie C. Augustyn (Augustyn) appeals the
final decision of the Commissioner of Social Security (Commissioner) denying her
application for Social Security disability insurance and supplemental security income
benefits. Augustyn claimed that she was disabled since May 29, 2009, due to learning
disability, depression, anxiety, poor concentration and spatial issues.
The parties filed cross motions for summary judgment (Docs. 11, 15). The motions
were referred to a magistrate judge (MJ) for a report and recommendation (MJRR). The
MJ recommends that Augustyn’s motion for summary judgment be denied and that the
Commissioner’s motion for summary judgment be granted. Augustyn filed timely objections
to the MJRR (Doc. 17). For the reasons that follow, the Court will overrule Augustyn’s
objections, adopt the MJRR, deny Augustyn’s motion for summary judgment (Doc. 11),

grant the Commissioner’s motion for summary judgment (Doc. 15), and affirm the
Commissioner’s decision denying benefits.
II. BACKGROUND
A. Procedural History/Administrative Record
As the parties have not objected to the MJ’s recitation of the procedural history and
administrative record, the Court adopts that portion of the MJRR as if fully set forth herein.
See (Doc. 16). A brief history of the procedural posture follows.
Augustyn applied for Social Security disability insurance and supplemental security
income benefits on December 21, 2009 alleging an onset date of May 29, 2009.
On March 19, 2010, the Commissioner denied Augustyn’s claims.
Augustyn requested a hearing. On June 28, 2011, Augustyn appeared with counsel
before an administrative law judge (ALJ). At the hearing, Augustyn testified on her own
behalf. In addition, James Fuller, a vocational expert (VE), offered testimony. In testifying,
the VE responded to a hypothetical question posed by the ALJ.
On July 25, 2011, the ALJ issued a written decision denying Augustyn’s claims. The
ALJ opined that Augustyn was not disabled because she could perform available work.
On August 6, 2012, the Appeals Council denied Augustyn’s request for review,
rendering the decision of the Commissioner final. Augustyn appeals from that decision.
B. The ALJ’s Decision
The MJRR summarizes the ALJ’s July 25, 2011 decision denying benefits:
Plaintiff was born in 1976 and was 33 years of age on the
alleged disability onset date and 35 years old at the time of the
administrative hearing. Plaintiff’s past relevant work included
work as a sales attendant and as a merchandise displayer.
The ALJ applied the five-step disability analysis to plaintiff’s
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claim and found at step one that plaintiff had not engaged in
substantial gainful activity since the alleged onset date. At step
two, the ALJ found that plaintiff’s learning disability, depression
and anxiety were “severe” within the meaning of the second
sequential step. At step three, the ALJ found that plaintiff does
not have an impairment or combination of impairments that
meet or equal the severity of one of the listings in the
regulations.
The ALJ concluded that plaintiff had no difficulties with
communication and had the residual functional capacity to
perform a full range of work at all exertional levels, but that she
is limited to unskilled, simple one to two step tasks and she
needs limited interaction with coworkers but is not restricted
such that she would need constant supervision. At step four,
the ALJ found that plaintiff could not perform her past relevant
work. At step five, the ALJ denied benefits because she could
perform a significant number of jobs available in the national
economy.
(Doc. 16, pp. 3–4) (internal citations to record omitted).
C. The Parties’ Arguments on Summary Judgment
1. Augustyn’s Arguments
Augustyn makes two arguments in her motion for summary judgment. First,
Augustyn argues that the ALJ failed to pose a complete and accurate hypothetical question
to the VE accounting for her non-exertional limitations in a competitive work setting.
Augustyn says that the question should have been more specific as to her concentrational
limitations, and that the VE’s response to a flawed hypothetical question cannot serve as
substantial evidence under 42 U.S.C. § 405(g). Second, Augustyn contends that the ALJ
erred in discounting her credibility. Augustyn says that the ALJ found that her self-reported
symptoms of lack of concentration was not credible in part because she sought persistent
treatment. Augustyn says that this was an improper finding. Therefore, Augustyn argues
that the Commissioner’s decision was not supported by substantial evidence.
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2. The Commissioner’s Arguments
The Commissioner’s motion for summary judgment argues that the ALJ’s
hypothetical question to the VE properly accounted for all of Augustyn’s limitations. In
addition, the Commissioner argues that the ALJ was correct in finding that Augustyn’s
statements as to the intensity, persistence, and limiting effects of her symptoms was not
entirely credible based on the evidence in the record.
D. The MJRR
The MJRR rejects Augustyn’s arguments. First, the MJRR explains that the ALJ’s
hypothetical question is supported by substantial evidence and accurately portrays
Augustyn’s physical and mental impairments. Citing to cases from this district, the MJRR
explains that multiple courts have found hypotheticals similar to the one in this case
adequate to account for moderate limitations in concentration, persistence, and pace. In
addition, the MJRR explains that the ALJ reasonably relied on Dr. Czarnecki’s1 report,
which concluded that Augustyn “‘retains the mental capacity to sustain an independent
routine of simple tasks[,] can tolerate and respond adequately to routine levels of
coworkers and supervisor interaction[, and] is able to adjust to simple changes in routine,’
despite her moderate difficulties in maintaining social functioning and maintaining
concentration, persistence, or pace.” (Doc. 16 at 28).
Next, the MJRR determines that the ALJ’s credibility assessment of Augustyn is
supported by substantial evidence.

The MJRR explains that the ALJ’s finding that

Augustyn’s persistence in pursuing treatment established her ability to maintain focus was

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Dr. Czarnecki was a non-examining psychologist.
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only one credibility finding made by the ALJ. The ALJ also determined that Augustyn’s
lengthy work history undermined her credibility, as well as her ability to stop taking
Adderrall in order to concentrate on graduate studies.
Thus, the MJRR recommends granting the Commissioner’s motion for summary
judgment, denying Augustyn’s motion for summary judgment, and affirming the decision
of the ALJ denying benefits.
E. Augustyn’s Objections to MJRR
Augustyn makes two objections to the MJRR. First, Augustyn contends that the MJ
erred in concluding that the hypothetical question posed to the VE was proper. Augustyn
says that the hypothetical question did not adequately describe her concentration and pace
limitations. Second, Augustyn says that the MJ improperly affirmed the ALJ’s finding that
she was not entirely credible about the extent of her concentration limitations due in part
to her persistence in pursuing treatment.
IV. STANDARD OF REVIEW
A. Objections to MJRR
A district court must conduct a de novo review of the parts of a MJRR to which a
party objects. 28 U.S.C. § 636(b)(1). “A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the matter to the magistrate judge
with instructions.” Id. The requirement that district judges with life tenure conduct a de
novo review and be the final arbiters of matters referred to a magistrate judge is
jurisdictional. United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985); Flournoy v.
Marshall, 842 F.2d 875, 878 (6th Cir. 1987).
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B. Commissioner’s Disability Determination
Judicial review of a Social Security disability benefits application is limited to
determining whether “the commissioner has failed to apply the correct legal standards or
has made findings of fact unsupported by substantial evidence in the record.” Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). A reviewing court may not resolve
conflicts in the evidence or decide questions of credibility. Brainard v. Sec’y of HHS, 889
F.2d 679, 681 (6th Cir. 1989). 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).

It is “more than a scintilla but less than a

preponderance.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 399 (1938). “Substantial
evidence exists when a reasonable mind could accept the evidence as adequate to support
the challenged conclusion, even if that evidence could support a decision the other way.”
Casey v. Sec’y of HHS, 987 F.2d 1230, 1233 (6thCir. 1993); Lindsley v. Comm’r of Soc.
Sec., 560 F.3d 601, 604 (6th Cir. 2009). The substantial evidence standard is deferential
and “presupposes that there is a zone of choice within which the decisionmakers can go
either way, without interference with the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986).
When determining whether the Commissioner’s decision is supported by substantial
evidence, the reviewing court must take into consideration the entire record as a whole.
Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). If the Appeals Council declines
to review the ALJ’s decision, the court’s review is limited to the record and evidence before
the ALJ, Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993), regardless if the ALJ actually
cited to the evidence. Walker v. Sec’y of HHS, 884 F.2d 241, 245 (6th Cir. 1989).
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Nonetheless, there is no requirement that the reviewing court discuss all evidence in the
record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x. 496, 508 (6th Cir. 2006).
Essentially, the court’s role is limited to search for substantial evidence that 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. Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
V. ANALYSIS
Augustyn’s objections to the MJRR do not withstand scrutiny. The ALJ’s decision
denying benefits is supported by substantial evidence and, therefore, will be affirmed.
A. The Hypothetical Question
Augustyn argues that the hypothetical question posed to the VE did not adequately
account for her functional limitations. According to Augustyn, this amounts to reversible
error. The Court disagrees.
The ALJ’s hypothetical question to the VE stated:
I want you to assume for me a younger individual with a
college education, Bachelor’s in Business Administration, no
difficulties with communication with residual functional capacity
to perform unskilled, simple, one, two-step work task activities.
Limited interaction with coworkers but not restricted such that
she would need to have supervision, if you understand what
I’m saying?
(Doc. 9-2 at 63).
In response, the VE testified that there would be some assembly packaging, laundry, and
dishwasher jobs available to Augustyn. (Id.).
The ALJ added the following to the hypothetical:

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Now, are there jobs in the unskilled, simple work where it’s
more like piecework, if you will, kind of thing as opposed to
being on an assembly line where you have to meet some
production, like you know, things are coming at you.
(Id.).
The VE responded that there would be jobs available as a ticket tacker in a parking lot and
as a sweeper.
Augustyn argues that the hypothetical question was improper because it did not take
into account Dr. Czarnecki’s finding that she was moderately limited in her ability to
maintain attention and concentration for extended periods, sustain an ordinary routine
without special supervision, interact appropriately with the general public, get along with
coworkers or peers without distracting them or exhibiting behavioral extremes, and respond
appropriately to changes in the work setting. Augustyn is wrong.
The Sixth Circuit has held that a hypothetical question posed to a VE must
accurately portray the claimant’s physical and mental impairments. Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 516 (6th Cir. 2010); Webb v. Comm’r of Soc. Sec., 368 F.3d 629 (6th
Cir. 2004).

Where the ALJ finds that a claimant has deficiencies in concentration,

persistence and pace, failure to account for such deficiencies in the hypothetical question
constitutes reversible error. Allen v. Comm’r of Soc. Sec., No. 09-13503, 2010 WL
3905983, at *5 (E.D. Mich. June 2, 2010) (“The failure to account for deficiencies in
concentration, persistence and pace in the hypothetical question constitutes reversible
error.”) (citing Bankston v. Comm’r, 127 F. Supp. 2d 820, 826 (E.D. Mich. 2000)); Badour
v. Comm’r of Soc. Sec., No. 10-13280, 2011 WL 3320872, at *7 (E.D. Mich. July 18, 2011)

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(“The failure to account for moderate concentrational deficiencies constitutes reversible
error.”) (citing Farley v. Comm’r of Soc. Sec., 820 F.2d 777, 779 (6th Cir. 1987)).
“The Sixth Circuit held that an ALJ’s failure to include in a hypothetical question a
finding that a claimant ‘often’ has difficulty concentrating is not a basis for remand when the
hypothetical question adequately describes that claimant’s limitations arising from a mental
impairment.” Benton v. Comm’r of Soc. Sec., 511 F. Supp. 2d 842, 848-49 (E.D. Mich.
2007) (citing Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)). The central inquiry is
whether the ALJ’s question adequately accounted for the claimant’s concentration
limitations. Id. at 859 (citation omitted).
In Allen, the court stated,
The problem here is that the ALJ found explicitly that Plaintiff
experienced moderate deficiencies in concentration,
persistence, and pace. Despite this determination, he made no
reference whatsoever to concentrational limitations in the
hypothetical question. The VE’s job findings, made in
response to an incomplete set of limitations (by the ALJ’s own
account) does not constitute substantial evidence.
2010 WL 3905983, at *5 (citing Teverbaugh v. Comm’r of Soc. Sec., 258 F. Supp. 2d 702,
706 (E.D. Mich. 2003)) (internal citations to record omitted). Similarly, in Benton, the court
stated,
Here, the ALJ found that although Plaintiff has a moderate
deficiency in her ability to maintain concentration, persistence,
and pace, she is able to perform simple, routine, repetitive
work. However, the limitations included in the hypothetical
question and the VE’s testimony regarding the effect a lack of
concentration has on jobs mentioned was insufficient to
suitably accommodate Plaintiff’s concentration limitations.
511 F. Supp. 2d at 849.

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This case is different than Allen and Benton. Here, the ALJ, based on the record,
made a credibility determination and rejected Augustyn’s testimony that her limitations were
as serious as she contended. Thus, the hypothetical question took into account Augustyn’s
limitations as recognized by the ALJ. Indeed, the ALJ specifically followed up with the VE
and asked whether unskilled, simple work is available for a person who needs piecemeal
work without any type of production goals. This was sufficient to address Augustyn’s
limitations.
The hypothetical question as it was framed by the ALJ, limiting Augustyn to simple,
unskilled piecemeal work, adequately accounted for her limitations. See Latare v. Comm’r
of Soc. Sec., No. 08-13022, 2009 WL 1044836, at *3 (E.D. Mich. April 20, 2009) (“Unskilled
work, by definition, is limited to understanding, remembering and carrying out only simple
instructions and requiring little, if any, judgment.”). Therefore, Augustyn’s objection to the
MJRR regarding the hypothetical question is without merit.
B. The ALJ’s Credibility Determination
Augustyn argues that the ALJ erred when assessing her credibility. Specifically,
Augustyn says that the ALJ’s rejection of her testimony about the severity of her
concentration limitations, based in part because she was persistent in seeking treatment,
was in error. The Court disagrees.
As the MJRR details, the ALJ’s finding that Augustyn’s concentration limitations were
not as severe as she reported was not based solely on Augustyn’s persistence in pursuing
treatment:
In this case, there is ample evidence supporting the ALJ’s
credibility determination. The ALJ thoroughly analyzed the
record evidence, including plaintiff’s assertions and
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descriptions of her conditions, and properly noted
inconsistencies with plaintiff’s testimony and the record
evidence. The ALJ’s finding that plaintiff’s persistence in
pursuing treatment established her ability to maintain focus
when necessary is just one of the ALJ’s credibility findings.
The ALJ also noted that plaintiff’s lengthy work history
undermined her credibility regarding her claim that her
impairments were disabling. The ALJ also noted that although
plaintiff testified that she stopped taking Adderrall because she
was on two different stimulants, the Oakland University
Counseling Center (OUCC) report indicated that plaintiff
stopped taking Adderrall for two months specifically for the
purpose of attenuating her reported ADHD symptoms for the
testing she was to undergo through OUCC, which the ALJ
found suggests a significant ability to focus and concentrate on
her desire to obtain academic accommodations for her
anticipation of graduate studies. The ALJ concluded that
based on the OUCC report, it appears that plaintiff “was very
methodical in presenting herself and pursuing a medical basis
to establish that she was an individual who suffered from
disabling cognitive and psychological impairments.” The ALJ
noted that the OUCC report indicates that plaintiff was “aspiring
to change careers” and was hoping to “matriculate into a
graduate program with mental health counseling that would
allow her to specialize in working with individuals with learning
disabilities,” which the ALJ found to be contrary to plaintiff’s
testimony that she did not desire to pursue a graduate degree.
The ALJ further noted that “contrary to [plaintiff’s] suggestion
that she lacked motivation and often arrived to work just within
allowable limits, the report indicated that she consistently
arrived on time to her appointments with OUCC.” Finally, the
ALJ also noted in her decision plaintiff’s reports as to the
activities in which she engaged: bowling, swimming, attending
church weekly for about three hours, attending a monthly Bible
Study group and social events such as family gatherings and
weddings, driving short trips, and babysitting her niece for a
couple of hours at a time.
(Doc. 16 at 31–32) (internal citations to record omitted).
The MJRR was correct in giving great deference to the ALJ’s credibility
determination which was supported by substantial evidence. See Kirkland v. Comm’r of
Soc. Sec., ___ F. App’x ___, 2013 WL 2233881, at *1 (6th Cir. 2013) (citing Gayheart v.
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Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013) (“We review only whether the ALJ
applied the correct legal standard and made findings supported by substantial evidence in
the record.”).
VI. CONCLUSION
For the reasons stated above, the MJRR (Doc. 16) is ADOPTED, Augustyn’s motion
for summary judgment (Doc. 11) is DENIED, the Commissioner’s motion for summary
judgment (Doc. 15) is GRANTED, and the Commissioner’s decision denying benefits is
AFFIRMED. The ALJ’s decision is supported by substantial evidence and will not be
disturbed.

SO ORDERED.

s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: September 19, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, September 19, 2013, by electronic and/or ordinary mail.

s/Sakne Chami
Case Manager, [phone]

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