Szapowal v. Commissioner of Social Security

Filing 23

Opinion and Order signed by Judge James S. Gwin on 2/23/15 adopting the Report and Recommendation of the Magistrate Judge and affirming the Commissioner's decision denying disability insurance benefits and supplemental security income. (Related Docs. 1 , 17 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
JOSEPH SZAPOWAL,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL
:
SECURITY ADMINISTRATION,
:
:
:
Defendant.
:
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CASE NO. 1:13-CV-02078

OPINION & ORDER
[Resolving Docs. 1, 17]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On October 16, 2014, Magistrate Judge James R. Knepp II recommended that the Court
affirm the Commissioner of Social Security’s denial of disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) to Plaintiff Joseph Szapowal.1/ Plaintiff has filed objections
to the Report and Recommendation (“R&R”).2/ Nevertheless, because substantial evidence supports
the Administrative Law Judge’s (ALJ’s) conclusions, the Court OVERRULES Plaintiff’s
objections, ADOPTS the Magistrate Judge’s R&R and AFFIRMS the Commissioner’s decision.
I. Factual and Procedural Background
On October 20, 2010, and October 28, 2010, Plaintiff filed applications for DIB and SSI
benefits, alleging disability due to multiple sclerosis (“MS”) and depression since February 15,

1/

Doc. 17.

2/

Doc. 20.

Case No. 1:13-CV-02078
Gwin, J
2009.3/ After the Social Security Administration denied his applications,4/ Plaintiff requested a
hearing with an ALJ.5/ On April 19, 2012, Administrative Law Judge Patrick J. Rhoa held a hearing
on Plaintiff’s applications.6/ A neutral vocational expert testified at this hearing.7/
At the hearing, Plaintiff testified that he had (1) depression, (2) problems sleeping, (3) MS,
(4) weakness in his hands, (5) headaches, and (6) difficulty dealing with hot and cold temperatures.8/
Plaintiff also testified that he experienced sudden, sharp pains that can drop him to his knees.9/
Further, Plaintiff noted that there were no problems with his attendance at his previous jobs, but that
he required a lot of breaks during his workday.10/
On May 24, 2012, the ALJ denied Plaintiff’s applications.11/ Although the ALJ determined
Plaintiff had severe impairments of MS and depression, the ALJ found that these impairments did
not, either together or separately, constitute a medically listed impairment.12/ The ALJ then found that
Plaintiff had a residual functional capacity (“RFC”) to perform light work with restrictions.13/
Specifically, the ALJ found that Plaintiff can (1) finger and handle bilaterally, (2) perform simple
and more complex tasks in an environment with routine changes, (3) ask questions appropriately in
a work setting, (4) understand four- and five-step instructions, (5) perform work with no strict

3/

Doc. 11 at 10.

4/

Id. at 145, 148, 158, 165.

5/

Id. at 173.

6/

Id. at 29.

7/

Id. at 65.

8/

Id. at 45, 46-47, 57, 58, 63

9/

Id. at 45.

10/

Id. at 55.

11/

Id. at 7.

12/

Id. at 12-13.

13/

Id. at 12.

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Gwin, J
production quotas and with frequent contact with the general public, co-workers, and supervisors,
and (6) work a job where he is off task only 5 percent of the time.14/
Based on this RFC and vocational expert testimony, the ALJ concluded that Plaintiff could
work as a sales attendant, counter clerk, and packer.15/ Because sufficient numbers of those jobs exist
in the national economy, the ALJ concluded that Plaintiff had not established a right to SSI or DIB.16/
Plaintiff’s request for appeal was denied, rendering the ALJ’s decision the final decision of the
Commissioner.17/
On September 19, 2013, Plaintiff filed suit to challenge the Commissioner’s decision.18/
Magistrate Judge Knepp has issued an R&R, recommending that the Commissioner’s decision be
affirmed.
II. Legal Standard
To establish disability under the Social Security Act, a claimant must show that he is unable
to engage in any substantial gainful activity because of a “medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for a
continuous period of not less than twelve months.”19/ Social Security regulations establish a five-step
sequential evaluation to determine whether the claimant is disabled.20/ The claimant’s impairment
must prevent him from doing his previous work as well as any other work existing in significant

14/

Id.

15/

Id. at 22.

16/

Id.

17/

Id. at 1, 6.

18/

Doc. 1.

19/

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

20/

20 C.F.R. §§ 404.1520, 416.920.

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Gwin, J
numbers in the national economy.21/
The Federal Magistrates Act requires a district court to conduct a de novo review only of
those portions of a Report and Recommendation to which the parties have made an objection.22/ A
final decision of the Social Security Commissioner made by an ALJ is not, however, reviewed de
novo. A district court determines only whether the ALJ’s decision was “supported by substantial
evidence and was made pursuant to proper legal standards.”23/
Substantial evidence is relevant evidence that a “reasonable mind might accept as adequate
to support a conclusion.”24/ The substantial evidence standard requires more than a scintilla, but less
than a preponderance of the evidence.25/ In deciding whether substantial evidence supports the ALJ’s
decision, a court should not try to resolve conflicts in evidence or decide questions of credibility.26/
The district court may look into any evidence in the record, regardless of whether it has been cited
by the ALJ.27/ When substantial evidence supports the ALJ’s decision, a court may not reverse, even
if the court would have reached a different conclusion.28/
III. Analysis
Plaintiff objects to (1) the finding that substantial evidence supports the ALJ’s RFC, (2) the
finding that the ALJ adequately evaluated the opinions of Plaintiff’s former employers and family
members, and (3) the finding that the ALJ had sufficient reason to discount the opinions of Plaintiff’s

21/

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

22/

28 U.S.C. § 636(b)(1).

23/

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

24/

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation marks omitted).

25/

See id.

26/

Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).

27/

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

28/

Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987).

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treating physician. The Court will address each objection in turn.
A. Substantial Evidence Supports the RFC
Plaintiff’s first objects that the “Magistrate Judge incorrectly found that the [RFC]
established by the ALJ was supported by substantial evidence.”29/ Specifically, Plaintiff objects to
the ALJ’s determination that Plaintiff would only be off task 5 percent of time.30/
A claimant’s RFC is an administrative assessment of “the most [he] can still do despite [his]
limitations.”31/ The RFC is based upon all relevant evidence, including medical records, medical
source opinions, and the claimant’s subjective allegations and description of his own limitations.32/
When a claimant’s statements about a symptom are not supported by medical evidence, the ALJ
“must make a finding on the credibility of the individual’s statements based on a consideration of
the entire case record.”33/
In the present case, the Court finds that substantial evidence exists to support the ALJ’s RFC
finding. The treatment notes and opinions of Drs. Vitkus, Konieczny, Tangeman, and Waddel all
support the ALJ’s finding that Plaintiff would not have significant restrictions staying on task.
Dr. Vitkus found that although Plaintiff feels “scatterbrained” at times, he had no problems
with “high motivation topics.”34/ Indeed, Dr. Vitkus consistently found that Plaintiff had average to
above average intelligence, good fund of knowledge, and an intact memory.35/ As the ALJ noted,
these findings conflict with Dr. Vitkus’s opinion that Plaintiff would be limited in his ability to

29/

Doc. 20 at 2.

30/

Id.

31/

20 C.F.R. §§ 404.1545, 416.945(a)(1).

32/

Id.

33/

Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *2.
Doc. 11 at 569.

34/
35/

Id. at 563.

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understand, remember, and carry out complex job instructions.36/ Additionally, Drs. Tangeman,37/
Waddel,38/ and Konieczny39/ all found that Plaintiff’s ability to concentrate and attend to tasks
showed no indications of impairment. Nevertheless, the ALJ adopted a more restrictive RFC, finding
that Plaintiff has moderate difficulties with concentration, persistence, and pace.40/
Plaintiff cites to Bankston v. Commissioner of Social Security41/ and Green v. Commissioner
of Social Security42/ for the proposition that moderate concentration limitations mean drifting off
twenty to thirty percent of the time at work. Those two decisions are not binding on this Court.
Furthermore, the cases are unpersuasive because they fail to cite any authority for the twenty to thirty
percent figure. Further, this Court and others in the Sixth Circuit have declined to follow Bankston
and Green or distinguished them.43/
Plaintiff further contends that the Magistrate Judge improperly considered evidence of
Plaintiff’s daily activities. This argument misses the mark. The Sixth Circuit has noted that an ALJ,
when evaluating a claimant’s alleged symptoms, must consider the individual’s daily activities.44/
As such, neither the Magistrate Judge nor the ALJ erred in considering evidence of Plaintiff’s daily
activities.

36/

Id. at 17.

37/

Id. at 86-87.

38/

Id. at 113-14.

39/

Id. at 501-04.

40/

Id. at 14.

41/

127 F. Supp. 2d 820 (E.D. Mich. 2000).

42/

2009 WL 2365557 (E.D. Mich. July 28, 2009).

43/

See, e.g., Eason v. Colvin, 2014 WL 2114710 (N.D. Ohio May 20, 2014); Schanck v. Comm’r of Soc. Sec.,
2014 WL 1304816 (E.D. Mich. Mar. 31, 2014); Coney v. Comm’r of Soc. Sec., 2014 WL 642225 (W.D. Mich. Feb. 19,
2014); Smith v. Comm’r of Soc. Sec., 2013 WL 6094745 (E.D. Mich. Nov. 20, 2013); Walker v. Comm’r of Soc. Sec.,
2013 WL 5279077 (N.D. Ohio Sept. 18, 2013).
44/

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); see also Soc. Sec. Rul. 96-7p, 1996 WL
374186, at *3.

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Plaintiff is correct to note that engaging in the activities of daily life does not in and of itself
mean that Plaintiff is not disabled. But that is not what either the Magistrate Judge or the ALJ
concluded. Instead, they supplemented the record medical evidence, which showed Plaintiff’s ability
to maintain concentration and attention, with evidence from Plaintiff’s daily life indicating the same.
The medical opinions noted above, along with evidence that Plaintiff maintained concentration and
attention while completing the activities of daily living, provide substantial evidence to support the
ALJ’s decision.
Finally, Plaintiff’s attempts to re-weigh the evidence fail as a matter of law.45/ Even if
substantial evidence exists in the record to support a different conclusion, the findings of the ALJ
are not subject to reversal if there is substantial evidence to support the ALJ’s decision.46/ Here, the
record supports a finding that the ALJ’s decision was supported by substantial evidence.
As such, Plaintiff’s First Objection to the R&R is OVERRULED.
B. The ALJ Adequately Evaluated the Opinions of Non-Medical Sources
Social Security regulations provide that in addition to medical sources an ALJ “may also use
evidence from other sources to show the severity of [claimant’s] impairments and how it affects [his]
ability to work.”47/ “Other sources” include non-medical sources such as “spouses, parents and other
caregivers, siblings, other relatives, neighbors, and clergy.”48/ Since an ALJ must consider all
relevant evidence, the ALJ “should explain the weight given to opinions from these ‘other sources,’
or otherwise ensure that the discussion of the evidence in the determination or decision allows . . . a

45/

Haun v. Comm’r of Soc. Sec., 107 F. App’x 462, 465 (6th Cir. 2004).

46/

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1996) and Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)).
47/

20 C.F.R. §§ 404.1513, 416.913.

48/

Id., §§ 404.1513(d)(4), 416.913(d)(4).

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subsequent reviewer to follow the [ALJ’s] reasoning.”49/
Plaintiff contends that the Magistrate Judge erred when he found that the ALJ complied with
the above regulations. Plaintiff’s argument fails. The ALJ considered witness statements from
Plaintiff’s mother and former employer that Plaintiff “has difficulties with his concentration.”50/ As
the ALJ specifically noted, these statements are inconsistent with the weight of medical evidence
presented.51/ In sum, the ALJ followed the regulatory guidelines in considering evidence from nonmedical sources.
As such, Plaintiff’s Second Objection is OVERRULED.
C. The ALJ Followed Regulations in Evaluating the Treating Physician’s Opinions
The Social Security Administration imposes certain standards on the assessment of medical
source evidence.52/ Under what is commonly called the treating physician rule, the Commissioner
has mandated that an ALJ “will” give a treating source’s opinion controlling weight if “it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.”53/
If the ALJ does not give the treating source’s opinion controlling weight, he must apply
certain factors to determine what weight to give it. These factors are “the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and the

49/

Soc. Sec. Rul. 06-03p, 2006 WL 2329939, at *6.

50/

Doc. 11 at 14.

51/

Id.

52/

20 C.F.R. § 404.1502.

53/

Id., § 404.1527(c)(2).

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specialization of the treating source.”54/
The Commissioner requires its decision makers to “always give good reasons in our notice
of determination or decision for the weight we give [a] treating source’s opinions.” Those good
reasons must be “supported by the evidence in the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.”55/ This requirement exists, in part, to let the
claimant understand the disposition of his case, especially in situations where his physician has
deemed him disabled while the Social Security Administration has not.56/ The requirement also
ensures that a court can conduct a meaningful review of an ALJ’s application of the rule.57/
In this case, the ALJ found that Dr. Vitkus was Plaintiff’s “treating psychologist.”58/ The ALJ
gave great weight, with several specific exceptions, to Dr. Vitkus’s opinions.59/ The ALJ did not give
great weight to Dr. Vitkus’s opinions that Plaintiff could only understand, remember, and carry out
complex job instructions during 50 percent of an 8-hour workday; that Plaintiff’s anxiety and
depression are in the moderate to severe range; and that Plaintiff would be absent from work more
than four times a month.60/
As per agency regulations, the ALJ offered reasons for discounting Dr. Vitkus’s opinions.
The ALJ noted that Plaintiff did not demonstrate any difficulties in concentration, attention,

54/

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); see also 20 C.F.R. §§ 404.1527(c)(2)(i)

and (ii).
55/

Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5.

56/

Wilson, 378 F.3d at 544.

57/

Id.

58/

Doc. 11 at 13.
Id. at 17-18.

59/
60/

Id. at 17.

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persistence, and pace when evaluated by Dr. Konieczny. Further, the ALJ noted that Plaintiff’s daily
activities, global assessment of functioning (“GAF”)61/ score, and medical records were inconsistent
with Dr. Vitkus’s opinions regarding the severity of Plaintiffs’ depression and the estimated
frequency of his absences from work.62/ Contrary to Plaintiffs’ objection, the ALJ did not err in
relying on the GAF scores as one of the many pieces of evidence that contradicted portions of Dr.
Vitkus’s opinion.63/
Thus, the ALJ provided good reasons for why he did not give great weight to portions of Dr.
Vitkus’s opinion and why he did not give the opinion as a whole controlling weight. The ALJ
determined that parts of Dr. Vitkus’s opinion were inconsistent with other medical evidence and thus
did not give controlling weight to the opinion as whole. But the ALJ did give great weight to the
portions of Dr. Vitkus’s opinion that conformed to the record’s evidence.
As such, Plaintiff’s Third Objection to the R&R is OVERRULED.
IV. Conclusion
The Court OVERRULES each of Plaintiff’s objections to Magistrate Judge Knepp’s R&R.
Further, the Court has reviewed the Magistrate Judge’s other recommendations and finds them to
be correct. Accordingly, the Court ADOPTS Magistrate Judge Knepp’s R&R and AFFIRMS the
Commissioner’s denial of benefits.

61/

The GAF scale represents a clinician’s judgment of an individual’s symptom severity or level of functioning.
Doc. 17 at 5 (citing Diagnostic & Statistical Manual of Mental Disorders, 32-33 (4th ed., Text Rev. 2000). A GAF score
of 51-60 indicates Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id.
62/

Doc. 11 at 17-18.

63/

See Price v. Comm’r of Soc. Sec., 342 F. App’x 172, 177 (6th Cir. 2009) (“Dr. Ashbaugh consistently
estimated Price’s global assessment of functioning (“GAF”) score to be in the mid–50s, indicating only “moderate”
symptoms. On this record, we find no error in the ALJ’s conclusion that Dr. Ashbaugh’s assessment that Price’s
impairments were debilitating was inconsistent with his treatment notes and prior assessments.”).

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IT IS SO ORDERED.

Dated: February 23, 2015

s/

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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