Harrod v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order affirming Commissioner's decision. Magistrate Judge Vernelis K. Armstrong on 1/7/15. (A,P)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Diana Harrod,

:

Plaintiff,

Case No. 1:14CV805

:

vs.

:

Carolyn W. Colvin
Acting Commissioner of Social Security

:

MEMORANDUM AND
ORDER

:
Defendant.
:

Plaintiff seeks judicial review of a final decision of the Commissioner denying her application for
Supplemental Security Income (SSI) and Disability Insurance Benefits under Titles II and XVI of the Social
Security Act (the Act), 42 U.S.C. §§ 416(i), 423, 1381, et seq., and § 405(g). The parties have consented to the
Magistrate entering final judgment in this case pursuant to 28 U.S.C. § 636(c)(1) and FED. R. CIV. P. 73 (Docket
No. 15). Pending are briefs on the merits filed by both parties (Docket Nos.17 & 20). For the reasons set forth
below, the Magistrate affirms the decision of the Commissioner.
I. PROCEDURAL BACKGROUND
On October 27, 2011, Plaintiff filed both her applications for SSI and DIB, alleging disability beginning
September 1, 2008 (Docket No. 13, pp. 313-319; 320-325 of 635). Plaintiff’s claims for both SSI and DIB were
denied on March 3, 2012, and upon reconsideration on May 9, 2012 (Docket No. 13, pp. 234-240; 241-249; 251-

257; 258-264 of 635). Plaintiff filed a written request for a hearing on May 15, 2012 (Docket No. 13, p. 265 of
635). On January 14, 2013, Administrative Law Judge (ALJ) John M. Dowling presided by video from St.
Louis, Missouri, over the hearing in Mansfield, Ohio at which Plaintiff, represented by Katherine M. Braun, was
present. Vocational Expert (VE) Cyndee Burnett participated by telephone (Docket No. 13, pp. 86-88 of 635).
The ALJ issued an unfavorable decision on January 18, 2013 (Docket No. 13, pp. 70-80 of 635). The Appeals
Council denied review of the ALJ’s decision on February 26, 2014, thus rendering the ALJ’s decision the final
decision of the Commissioner (Docket No. 13, p. 5 of 635).
II. FACTUAL BACKGROUND
A.

ADMINISTRATIVE HEARING
1.

PLAINTIFF’S TESTIMONY

Plaintiff testified that she is 50 years old and lives alone in a ground floor apartment with her cat (Docket
No. 13, p. 90 of 635). She is approximately five feet tall and weighs 210 pounds (Docket No. 102 of 635).
Plaintiff has never held a driver’s license because she is unable to read the test preparation manual. For
transportation, she relies on her friends or walks (Docket No. 13, pp. 90-91 of 636). Plaintiff stated that she
dropped out of school in the ninth grade, was in special education classes throughout her schooling, and that
reading is difficult for her (Docket No. 13, p. 91 of 635). In response to the ALJ’s questions, Plaintiff explained
that she can read some parts of the newspaper, a menu, and traffic sign, but is unable to do basic math and does
not have her GED (Docket No. 13, p. 92 of 635).
Despite her learning difficulties, Plaintiff received a certificate as a State Tested Nurse Assistant (STNA)
in 1989 (Docket No. 13, pp. 92-93 of 635). Since 2007, Plaintiff has worked as a nurse’s aide for Almost Family,
Inc. (Docket No. 13, p. 93 of 635). Plaintiff testified that she is unable to work as a nurse’s aide in nursing
homes because she is unable to lift (Docket No. 13, p. 93 of 635). Instead, she provided care within a patient’s

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home. Plaintiff described giving clients baths, cleaning their homes and preparing meals among her job tasks,
emphasizing that she is unable to lift clients (Docket No. 13, pp. 94-95 of 635). Plaintiff explained that she
works approximately 15 hours one week and 21 hours the next, but is unable to work additional hours because
her hips bother her (Docket No. 13, p. 95 of 635). Plaintiff indicated that she has to sit quite often, which her
clients permit (Docket No. 13, p. 95 of 635). Plaintiff opined that she sits every twenty minutes to an hour
because she experiences numbness and tingling in her hips, which forces her to sit, or if she is walking, to grab
something for stability or support (Docket No. 13, p. 96 of 635). Plaintiff added that she treats with Dr. Toward
and that he gives her medication for her hips. He also advised that she has arthritis in her hips, fibromyalgia,
and chronic pain (Docket No. 13, p. 96 of 635).
Plaintiff detailed her past work history including nursing aide jobs at Mansfield Memorial Homes, First
Choice Medical Staffing, Michael Coleman, Inc., and a dietary job at Mansfield Memorial Hospital
approximately 15 years earlier (Docket No. 13, pp. 96-98 of 635). According to Plaintiff, she has not lifted
more than 20 pounds at any job during the preceding 15 years (Docket No. 13, p. 98 of 635). Plaintiff also
testified that she always got help when performing jobs that required lifting (Docket No. 13, pp. 97-98 of 635).
During direct examination by her attorney, Plaintiff testified that her hips, muscle spasms, and her hip
and leg numbness and tingling have gotten worse since her prior hearing (Docket No. 13, p. 99 of 365). Plaintiff
stated that the pain in her back is about as bad as in her hips, but that the worst pain is in her hips (Docket No.
13, p. 99 of 365). Plaintiff explained that the tingling and numbness she experiences makes her leery to go into
stores and gives her anxiety (Docket No. 13, p. 99 of 365). She also noted that the sensations in her hip require
her to stop walking after five minutes, and that she has to stand and hold something for about five minutes
(Docket No. 13, pp. 99-100 of 635). Plaintiff also gets muscle spasms in her back and hips which occur quite
frequently (Docket No. 13, p. 100 of 635). According to Plaintiff, she is typically lifting, bending, or walking

3

when the spasms occur (Docket No. 13, p. 100 of 635). Plaintiff testified that she can lift about five pounds now,
but her legs and hips bother her quite a bit (Docket No. 13, p. 100 of 635).
Plaintiff takes Neurontin and a muscle relaxer for her symptoms, but noted side effects including
drowsiness (Docket No. 13, p. 101 of 635). Due to the side effects, Plaintiff does not take these medications
when she goes to work, instead taking Tylenol or other over-the-counter medications to alleviate her pain so that
she does not become drowsy (Docket No. 13, p. 101 of 635). Plaintiff testified that she works no more than six
hours in any given day and three hours the other days (Docket No. 13, p. 101 of 635). After a three hour day,
Plaintiff indicated that she hurts and needs to lie down when she gets home (Docket No. 13, pp. 101-102 of
635). Plaintiff estimated that she lies down for maybe an hour or an hour and a half (Docket No. 13, p. 102 of
635). When asked about problems with her legs, Plaintiff reported feeling numbness and cramps in her feet, but
noted that she experiences these symptoms in her right leg more than her left (Docket No. 13, p. 102 of 635).
Plaintiff testified that she experiences numbness in her feet quite often, as many as three, four, or five times a
week and that it lasts for about 20 minutes causing her to sit down (Docket No. 13, p. 102 of 635). Plaintiff also
has diabetes, but indicated that it was under control (Docket No. 13, p. 102 of 635). Plaintiff explained that in
recent years her weight had been gradually increasing, which has caused her pain in her hips and legs. In terms
of sitting, Plaintiff explained that sometimes she is unable to sit, lie on her back or stand and has to lie on her
side for about an hour and a half to relax her muscles (Docket No. 13, pp. 103-104 of 635).
Plaintiff also testified about her anxiety, explaining that it gets worse when she goes to the store, causes
“pattering” in her heart, and makes it difficult to breathe (Docket No. 13, p. 104 of 635). According to Plaintiff,
her anxiety is triggered when a lot of people are around her talking or she hears kids causing her to hurry up and
leave the store (Docket No. 14, p. 104 of 635). Plaintiff noted that she suffers from depression when she thinks
about her mother and her recent house fire. She also worries about whether she is performing her job adequately

4

(Docket No. 14, p. 104 of 635). Plaintiff described crying spells which occur two and three times a day for
between 20 to 30 minutes (Docket No. 14, pp. 104-105 of 635). Plaintiff also testified that sometimes she cries
at work and in front of clients and that she worries that she would be fired if her employer found out (Docket
No. 13, p. 105 of 635). In response to her attorney’s question, Plaintiff testified that she misses work two to
three times a month because of muscle spasms and her fear of walking (Docket No. 13, pp. 105-106 of 635).
Plaintiff opined that she could be on her feet for no more than four hours during an eight-hour workday,
but on the following days would only be able to be on her feet for an hour and a half before needing to sit down
awhile (Docket No. 13, p. 106 of 635). Plaintiff indicated that she would like to work more, but cannot because
of her condition, noting that her depression, hips, muscle spasms, and other symptoms make her days uncertain
(Docket No. 13, p. 107 of 635). Although Plaintiff testified that she is able to perform household chores such
as sweeping and mopping, she noted that running the sweeper bothers her hips quite a bit (Docket No. 13, p. 107
of 635). Plaintiff also explained that she is able to do chores about a half-hour before getting side tracked
(Docket No. 13, p. 107 of 635).
Plaintiff spends her days playing with her cat, preparing meals, cleaning dishes, taking a bath and getting
ready for bed (Docket No. 13, p. 108 of 635). She normally sleeps between eight and ten hours, depending upon
how she feels (Docket No. 13, p. 108 of 635). Plaintiff explained that on some days she does not feel like getting
out of bed, but that she does so on a daily basis (Docket No. 13, p. 109 of 635). The ALJ followed up counsel’s
questions by confirming that Plaintiff had not had any more x-rays taken of her hips since her prior hearing, that
her primary care physician was Dr. Toward and that she smokes approximately 10 cigarettes a day (Docket No.
13, p. 109 of 635). Plaintiff also testified that she treats at “the center” in Mansfield for her mental health, had
treated with Mary Rufer, but was not currently seeing anyone to treat her anxiety other than the medication
management by Dr. Toward (Docket No. 13, pp. 109-110 of 635). Plaintiff testified that she is compliant with

5

her medications while at home, but does not take them before work due to the side effects (Docket No. 13, pp.
110-111 of 635). In response to the ALJ’s questions, Plaintiff elaborated concerning her depression, noting that
her mother passed away in April and that she lost everything in an apartment fire in March 13, pp. 110-111 of
635). When asked about her Norvasc and Symbicort medications, Plaintiff indicated she stopped taking them
because they made her breathe heavier and made her skin break out with rashes (Docket No. 13, p. 112 of 635).

2.

VE TESTIMONY

The VE described Plaintiff’s past work as a personal care aide, DOT1 354.377-014, with a specific
vocational preparation (SVP)2 of 3, listed as medium, but performed by Plaintiff as light exertion, certified
nursing assistant (CNA), DOT 355.674-014, SVP of 4, listed as medium, but performed as light exertion (Docket
No. 13, p. 114 of 662). The ALJ then presented his first hypothetical question:
Assume a person of Claimant’s age, education, and work experience who is able to perform the
exertional demands of light work. However, the person would have the following non-exertional
limitations. The person is capable of doing a job that allows for alternating between sitting and
standing positions at will, provided that the person remain productive. And the person would be
limited to simple, routine tasks. Can an individual with those limitations perform the Claimant’s
past work as it was actually performed or as it is customarily performed per the DOT?
(Docket No. 13, pp. 114-115 of 635). After considering the hypothetical, the VE responded that such an
individual would not be able to perform Plaintiff’s past work (Docket No. 13, p. 115 of 635). The ALJ asked
whether there would be any other jobs in the regional or national economy that would accommodate such
limitations (Docket No. 13, p. 115 of 635). The VE replied that there would be jobs such as: office helper, DOT

1

Dictionary of Occupational Titles (“DOT”)

2

SVP is the amount of lapsed time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker situation.
www.onetonlne.org. SVP is a component of Worker Characteristics information found in the Dictionary of
Occupational Titles (DOT), a publication that provides universal classifications of occupational definitions and how
the occupations are performed. www.occupationalinfo.org.

6

239.567-010, with a SVP of 2, light, having 90,000 jobs in the national economy, and 800 in the State of Ohio;
ticket seller, DOT 211.467-030, with a SVP of 2, light exertion, having 80,000 jobs in the national economy and
600 in the State of Ohio; cashier, DOT 211.462-010, with a SVP of 2, light, with 4,000 jobs in the national
economy and 6,000 in the State of Ohio (Docket No. 13, p. 115 of 635).
The ALJ then inquired about the typical number of permissible monthly absences in an unskilled work
environment (Docket No. 13, p. 115 of 635). The VE responded that the average number of unexcused absences
would be about one per month. The ALJ also confirmed with the VE that in unskilled work, an individual
normally has two15-minute breaks and a half hour lunch or just a one-hour lunch break (Docket No. 13, p. 115
of 635). The ALJ further questioned the VE about work breaks, asking:
If somebody has to take additional breaks above and beyond those standard breaks, or has to miss
more than a day, one day per month on a continual basis due to dealing with symptoms of
impairments, is that going to rule out competitive employment?
(Docket No. 13, p. 115 of 635). The VE indicated that additional breaks or absences would preclude the
individual from competitive employment (Docket No. 13, p. 115 of 635). The ALJ’s next asked:
If somebody is dealing with impairments during the day, there may be – or even in the
sitting/standing situation where they are not always productive, they’re actually off-task for a
percentage of the day, what’s the limit as far as – how much can somebody be off-task on a
continual basis in a workday before that person is no longer going to be employable?
(Docket No. 13, p. 116 of 635). In response to the ALJ’s question, the VE replied that the average off-task
allowance is about 10% of a workday (Docket No. 13, p. 116 of 635). The ALJ then confirmed with the VE
that if the individual is off-task more than 10% on a continual basis then they’re not going to be competitive in
a work environment (Docket No. 13, p. 116 of 635).
During cross-examination by Plaintiff’s counsel, the VE was asked to revisit the ALJ’s first hypothetical
question. Counsel asked whether a person who is unable to be on his/her feet more than an hour and a half and
must sit the rest of an eight-hour day would be consistent with a light or sedentary occupational base (Docket
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No. 13, p. 116 of 635). The VE responded that the scenario presented by Counsel would be more closely aligned
with sedentary work (Docket No. 13, p. 117 of 635).
B.

MEDICAL RECORDS
Summaries of Plaintiff’s medical records, to the extent they are necessary and relevant to the issues

before this Court, follow.
1.

MEDCENTRAL HEALTH SYSTEMS

!

On April 14, 2009, Plaintiff underwent a MRI of her lumbar spine for low back pain extending
into both of her hips. Interpreting Radiologist, Paul Buehrer, M.D. found multiple levels of
degenerative disc changes with apophyseal joint anthropathy and mild spinal stenosis at L4-5
(Docket No. 13, pp. 461-462 of 635).

!

On May 21, 2011, Plaintiff arrived at Mansfield Hospital complaining of pain, swelling and
drainage of moderate severity. On examination Plaintiff had erythema and an ulceration which
was warm and dry. Plaintiff’s diagnosis indicated that she had an abscess, cellulitis (skin
infection), and MRSA/VRE (Docket No. 13, pp. 437-441 of 635).

2.

THIRD STREET FAMILY HEALTH SERVICES - DR. BRETT TOWARD, M.D.

!

On July 14, 2009, Plaintiff complained of chronic pain in her lower back. MRI and x-ray results
of Plaintiff’s lower back found multi-level degenerative disc disease. Dr. Toward diagnosed
lumbago, lumbar disc degeneration, and chronic pain syndrome. Plaintiff was referred for a
consultation with a specialist and prescribed Neurontin,3 and diclofenac sodium4 (Docket No. 13,
pp. 505-507 of 635).

!

On October 27, 2009, Plaintiff reported that she had been off depression medications because she
did not think they were helping; however, she had been experiencing increased anxiety and
paranoia. Plaintiff expressed fear and paranoia. Dr. Toward’s assessment of Plaintiff notes
benign essential hypertension, depression, and generalized anxiety disorder. Dr. Toward

3

Neurontin is prescribed to relieve nerve pain and is sometimes prescribed to help control seizures.
Neurontin oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 2:37 PM),
http://www.webmd.com/drugs/2/drug-9845-8217/neurontin-oral/gabapentin-oral/details.
4

Diclofenac sodium is prescribed to relieve pain, swelling, and joint stiffness caused by arthritis. diclofenac
oral:Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 2:39 PM),
http://www.webmd.com/drugs/2/drug-4284-4049/diclofenac-oral/diclofenacsodiumenteric-coatedtablet-oral/details.

8

prescribed paroxetine,5 Vistaril pamoate,6 hydrochlorothiazide-lisinopril,7 and Celexa8 (Docket
No. 13, pp. 504-505 of 635).
!

On November 3, 2009, Plaintiff indicated that she was feeling better since her last treatment,
noting that her night time anxiety had decreased, her sleep was good, her appetite stable, and that
her nausea had improved. Dr. Toward’s medical assessment reflects diagnoses of primary
insomnia, generalized anxiety disorder, and that Plaintiff’s medications were continued (Docket
No. 13, pp. 502-503 of 635).

!

On March 11, 2010, Plaintiff reported that she could not take Vistaril or Paxil because of
undesirable side effects. Plaintiff also complained of chronic pain and indicated that she had
stopped taking Neurontin after a few days. Dr. Toward’s assessment notes accelerated essential
hypertension, myalgia and myositis, depression and chronic pain syndrome. Dr. Toward
recommended a renal function panel, serum TSH level and prescribed Paroxetine, diciofenac
sodium, Vistaril Pamocate, Remeron,9 hydrochlorothiazide-lisinopril, Neurontin, and cetirizine10
(Docket No. 13, pp. 501-502 of 635).

!

On April 8, 2010, Plaintiff indicated that her Remeron medication had worked well. The
treatment record reflects that Plaintiff had not been to the doctor for over six months. Plaintiff
was described as being in poor compliance and having gained weight due to a poor diet. On
examination, Dr. Toward noted no abnormalities and continued Plaintiff on her medications
(Docket No. 13, pp. 500-501 of 635).

5

Paroxetine is prescribed to treat depression, panic attacks, obsessive-compulsive disorder, anxiety
disorders, and post-traumatic stress disorder by restoring serotonin in the brain. paroxetine oral:Uses, Side Effects,
Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 2:42 PM),
http://www.webmd.com/drugs/2/drug-6969-9095/paroxetine-oral/paroxetine-oral/details.
6

Vistaril or hydroxyzine pamote is an antihistamine and is prescribed to treat allergic reactions.
hydroxyzine pamoate oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014,
2:42 PM), http://www.webmd.com/drugs/2/drug-7092/hydroxyzine-pamoate-oral/details.
7

Hydrochlorothiazide-lisinopril is prescribed to treat high blood pressure. Lisinopril and
Hydrochlorothiazide: MedlinePlus Drug Information, MEDLINEPLUS, (Oct. 14, 2014, 2:48 PM),
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601070.html.
8

Celexa is prescribed to treat depression. Celexa oral: Uses, Side Effects, Interactions, Pictures, Warnings
& Dosing, WEBMD, (Oct. 14, 2014, 2:50 PM), http://www.webmd.com/drugs/2/drug-8603/celexa- oral/details.
9

Remeron is prescribed to treat depression. Remeron oral: Uses, Side Effects, Interactions, Pictures,
Warnings & Dosing, WEBMD, (Oct. 14, 2014, 2:57 PM),
http://www.webmd.com/drugs/2/drug-13707/remeron-oral/details.
10

Cetirizine is an antihistamine prescribed to treat allergy symptoms. Cetirizine: MedlinePlus Drug
Information, MEDLINEPLUS, (Oct. 14, 2014, 3:07 PM), http://www nlm nih.gov/medlineplus/druginfo/
meds/a698026.html.

9

!

On June 8, 2010, Plaintiff complained that her pain was unchanged and that she was walking for
30 minutes each day. In his assessment, Dr. Toward diagnosed Plaintiff as having benign
essential hypertension, COPD, and type 2 diabetes mellitus, uncomplicated and controlled.
Plaintiff was continued on her medications which included Spiriva,11 Advair Diskus,12 Neurontin,
Soma,13 hydrocholorothiazide-lisinopril, cetirizine, Remeron, and metformin14 (Docket No. 13,
pp. 499-500 of 635).

!

On July 29, 2010, Plaintiff complained that she was having an allergic reaction to her diabetic
medications, specifically metformin. Dr. Toward ‘s diagnoses of June 8, 2010 were affirmed
with the addition of chronic pain. Plaintiff was prescribed Januvia,15 Soma and metformin was
continued (Docket No. 13, pp. 497-498 of 635).

!

On September 28, 2010, Plaintiff reported feeling numbness in both of her feet. The treatment
notes reflect that Plaintiff had been non-compliant with her metformin treatment in the past and
had not started her Januvia until about three or four weeks ago. Dr. Toward’s assessment noted
accelerated essential hypertension, COPD, chronic pain, and depression. Dr. Toward continued
Plaintiff on her medications, but added Chantix16 (Docket No. 13, pp. 496-497 of 635).

!

On December 28, 2010, Plaintiff’s blood pressure and cholesterol were noted as being higher in
her recent lab tests. Dr. Toward’s assessment reflects diagnoses of accelerated essential
hypertension, type 2 diabetes mellitus, uncomplicated and uncontrolled, and myalgia and
mysotis. Plaintiff was continued on her medications (Docket No. 13, pp. 494-496 of 635).

!

On January 27, 2011, Plaintiff was seen by Trish A. Trubachik, nurse practitioner certified (NP11

Spiriva is prescribed to treat and control symptoms associated with COPD. Spiriva with HandiHaler
inhalation: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:09 PM),
http://www.webmd.com/drugs/2/drug-89062/spiriva-with-handihaler-inhl/details.
12

Advair Diskus is prescribed to prevent symptoms associated with ongoing COPD. Advair Diskus
inhalation: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:11 PM),
http://www.webmd.com/drugs/2/drug-20538/advair-diskus-inhalation/details.
13

Soma is prescribed to treat short-term muscle pain and discomfort. Soma oral: Uses, Side Effects,
Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:12 PM), http://www.webmd.com/
drugs/2/drug-12153/soma-oral/details.
14

Metformin is prescribed for patients with type 2 diabetes and is used to control high blood sugar.
metformin oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:14 PM),
http://www.webmd.com/drugs/2/drug-11285-7061/metformin-oral/metformin-oral/details.
15

Januvia is prescribed to control high blood sugar to prevent kidney damage in patients with type 2
diabetes. Januvia oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014,
3:16 PM), http://www.webmd.com/drugs/2/drug-145704/januvia-oral/details.
16

Chantix is prescribed to help support the cessation of smoking. Chantix oral: Uses, Side Effects,
Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:18 PM),
http://www.webmd.com/drugs/2/drug-144470/chantix-oral/details.

10

C) for her annual pap, pelvic, and clinical breast examination. Plaintiff reported recurring
abdominal pain, anxiety, and depression. On examination, no relevant abnormalities were
documented (Docket No. 13, pp. 489-493 of 635).
!

On March 31, 2011, Plaintiff reported feeling stressed over a family situation. Dr. Toward’s
assessment notes Plaintiff’s diagnoses as accelerated essential hypertension, COPD, depression,
and chronic pain syndrome. Dr. Toward recommended a comprehensive metabolic panel, a lipid
profile, glycosylated hemoglobin, ALH, and continued Plaintiff’s medications, which included
the addition of Soma and Ventolin HFA17(Docket No. 13, pp. 488-489 of 635).

!

On May 19, 2011, Plaintiff was seen by Leslie D. Thomas, Certified Nurse Practitioner (CNP)
for a boil on Plaintiff’s right breast and a fever. Plaintiff reported nausea, vomiting, and a fever
over the past two days. Upon examination, Plaintiff was referred to the emergency room (Docket
No. 13, pp. 486-487 of 635).

!

On August 18, 2011, Plaintiff presented and the treatment notes reflect that she had been a noshow for regular appointments two months ago and had stopped taking some of her medications,
which had resulted in anxiety. Dr. Toward’s assessment notes Plaintiff’s diagnoses as
accelerated essential hypertension, chronic obstructive pulmonary disease, depression, and
chronic pain syndrome. Dr. Toward prescribed Remeron, and hydrochlorothiazide-lisinopril
(Docket No. 13, pp. 485-486 of 635).

!

On September 26, 2011, Plaintiff saw Dr. Toward, who described Plaintiff’s mood as euthymic
and indicated that Plaintiff had been administered a psychometric depression scale, which was
11. Dr. Toward’s assessment for Plaintiff lists accelerated essential hypertension, COPD, chronic
pain, and dysthymic disorder. Plaintiff was given glucose testing strips, prescribed Neurontin,
Simvastatin,18 Januvia, hydrochlorothiazide-lisinopril, Remeron, and Novasc19 (Docket No. 13,
pp. 484-485 of 635).

!

On October 20, 2011, Plaintiff requested pain medication and reported that she had been
experiencing a cold for two weeks. On examination, Dr. Toward found Plaintiff’s blood pressure
was slightly better. Plaintiff’s medications were continued and she was prescribed Albuterol
(Docket No. 13, pp. 481-482 of 635).

17

Ventolin HFA or Albuterol is prescribed to prevent wheezing and shortness of breath caused by
breathing problems including COPD. Ventolin HFA inhalation: Uses, Side Effects, Interactions, Pictures, Warnings
& Dosing, WEBMD, (Oct. 14, 2014, 3:19 PM), http://www.webmd.com/drugs/2/drug-22577/ventolin-hfa-inhalation
/details.
18

Simvastatin is prescribed in conjunction with a proper diet to help lower bad cholesterol and fats.
simvastatin oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:22 PM),
http://www.webmd.com/drugs/2/drug-6105/simvastatin-oral/details.
19

Norvasc is prescribed to treat high blood pressure. Norvasc oral: Uses, Side Effects, Interactions,
Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:24 PM),
http://www.webmd.com/drugs/2/drug-5942/norvasc-oral/details.

11

!

On December 22, 2011, Plaintiff reported going to The Center for her mood, that she had stopped
her Norvasc and Symbicort medications because she did not like them, and had not stopped
smoking. Dr. Toward prescribed albuterol, hydrochlorothiazide-lisinopril, simvastatin, Advair
Diskus, Spiriva, Soma, and Flexeril (Docket No. 13, pp. 553-554 of 635).

!

On June 19, 2012, Plaintiff indicated that she was still going to The Center for her mood, was still
smoking, had suffered a house fire, and that her mother had passed away. Plaintiff was
administered a psychometric depression scale which was 17. Dr. Toward recommended that
Plaintiff lose weight and her assessment listed diagnoses including accelerated essential
hypertension, COPD, and Depression. Plaintiff’s treatment plan recommended a weight loss diet,
intervention, and counseling on cessation of tobacco use. Plaintiff was prescribed Celexa,
loratadine, simvastatin, hydrochlorothiazide-lisinopril, and she was discontinued on Flexeril20
(Docket No. 13, pp. 619-621 of 635).

!

On September 18, 2012, Plaintiff inquired about other medications for anxiety. It was noted that
Plaintiff was still smoking, reported experiencing anxiety, but had not followed the plan to see
a social worker and go to The Center. Dr. Toward’s assessment reflects diagnoses of accelerated
essential hypertension, COPD, and Depression. Plaintiff’s therapy included weight loss diet,
intervention, and counseling on cessation of tobacco use. Plaintiff was prescribed loratadine,21
buspirone,22 simvastatin, hydrochlorothiazide-lisinopril, Celexa, promethazine-DM,23 and
Remeron (Docket No. 13, pp. 616-618 of 635).
a.

BEHAVIORAL HEALTH ASSESSMENT

On September 22, 2011, Plaintiff underwent a behavioral health assessment with Mary Rufer, LISW-S
(Licensed Independent Social Worker with Supervised designation) for depression and anxiety. According to
the report, the appointment with Plaintiff lasted 50 minutes. Ms. Rufer noted that Plaintiff needs symptom and

20

Flexeril is prescribed to treat muscle spasms. Flexeril oral: Uses, Side Effects, Interactions, Pictures,
Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:27 PM),
http://www.webmd.com/drugs/2/drug-11372/flexeril-oral/details.
21

Loratadine is an antihistamine prescribed to relieve allergy symptoms. Loratadine: MedlinePlus Drug
Information, MEDLINEPLUS, (Oct. 14, 2014, 3:29 PM),
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697038.html.
22

Buspirone is prescribed to treat anxiety. buspirone oral: Uses, Side Effects, Interactions, Pictures,
Warnings & Dosing, WEBMD, (Oct. 14, 2014, 3:31 PM), http://www.webmd.com/drugs/2/drug-8876/buspironeoral/details.
23

Promethazine-DM works like an antihistamine and is prescribed to treat the common cold and allergies.
promethazine-DM oral: Uses, Side Effects, Interactions, Pictures, Warnings & Dosing, WEBMD, (Oct. 14, 2014,
3:33 PM), http://www.webmd.com/drugs/2/drug-3402/promethazine-dm-oral/details.

12

disability management skills and recommended one-on-one counseling services and the support of family and
friends. Ms. Rufer diagnosed Plaintiff with Dysthymic Disorder and Generalized Anxiety Disorder with deferred
rule out Borderline Intellectual Functioning. Plaintiff was assessed a Global Assessment of Functioning (GAF)
score of 55 (Docket No. 13, pp. 510-523 of 635).
b.

COUNSELING SERVICES

On November 3, 2011, Plaintiff had an individual therapy session with Ms. Rufer, which lasted 55
minutes. Plaintiff was described as depressed and tearful but cooperative. Ms. Rufer obtained a psychiatry
referral for Plaintiff to The Center for future mental health services since Plaintiff does not have insurance
(Docket No.13, p. 555 of 635).
3.

THE CENTER
a.

PSYCHIATRIC EVALUATION

!

On December 15, 2011, Plaintiff underwent an initial psychiatric evaluation with Evelyn
Williams, LPN and Ms. Emmons, a nurse practitioner assistant and reported being depressed
because her mother has dementia, that she (Plaintiff) was having anxiety, has no insurance
coverage, works three days a week and had been treating with Remeron prescribed by her
primary care physician. The treatment notes from the evaluation list diagnoses of major
depressive disorder recurrent moderate, Generalized Anxiety Disorder, and she was assessed a
GAF score of 38. Plaintiff was prescribed Prozac and it was recommended that she continue
therapy and follow-up in one month (Docket No. 13, pp. 560-565 of 635).

!

On April 29, 2013, a second Psychiatric Evaluation form is included for Plaintiff which was also
rendered by Ms. Williams and Ms. Emmons. The form reflects that Plaintiff reported having a
rough year after having a fire, suffering from a medical scare, and losing her mother in April.
Plaintiff indicated she was depressed and had occasional thoughts of overdosing on medications.
Plaintiff also reported experiencing panic attacks two to three times a week, and not enjoying
much of anything and isolating herself. The evaluation notes diagnoses including Major
Depressive Disorder, recurrent, moderate, Panic Disorder without agoraphobia, and assesses a
GAF score of 54 (Docket No. 13, pp. 630-635 of 635).
b.

ADULT DIAGNOSTIC ASSESSMENT

On November 8, 2011, Plaintiff underwent an adult diagnostic assessment with a licensed social worker
and reported having lots of depression and that her anxiety gets really bad when she shops in a store. A summary
13

of Plaintiff’s educational history reflects that the highest grade level of school she completed was ninth grade
and that she was placed in special education classes. Plaintiff reported using tobacco daily and last having
consumed alcohol a couple years earlier. Plaintiff’s diagnosis is listed as Major Depressive Disorder recurring,
moderate, Panic Disorder without Agoraphobia, and she was assessed a GAF score of 38. A mental status exam
describes Plaintiff as disheveled in appearance, overweight, withdrawn, maintaining normal eye contact, activity,
and speech. No delusions, hallucinations, self abuse or aggressive behavior were noted. Plaintiff’s thought
process was noted as having flight of ideas, her mood depressed and anxious with flat affect (Docket No. 13,
pp. 566-578 of 635).
c.

TREATMENT

!

On January 12, 2012, Plaintiff met with Evelyn Williams for psychiatric care and complained that
she was depressed, experiencing anxiety, and had been compliant with her medications. Ms.
Williams described Plaintiff as having appropriate appearance, coherent thought process,
showing no signs of delusions or paranoia, that Plaintiff denied experiencing hallucinations, was
of anxious affect, but cooperative, alert, oriented x 3. Plaintiff’s judgment was noted as being
intact and that she denied any substance abuse or trauma. Plaintiff’s diagnosis reflects Major
Depressive Disorder (MDD) recurrent moderate, hepititis C, diabetes mellitus, COPD, arthritis,
and hypertension. Plaintiff was prescribed Celexa and BuSpar24 and referred for a medical
assessment (Docket No. 13, pp. 558-559 of 635).

!

On April 3, 2012, Plaintiff saw Ms. Emmons and reported recently having had a house fire and
losing everything, that her mother was in a nursing home, and that she had been experiencing
crying spells, and anxiety related to concentration difficulties. Plaintiff requested to change her
medication back to Prozac, and questioned whether an increase in BuSpar would be helpful. The
notes indicate that Plaintiff was undergoing therapy with Tricia Clark. Plaintiff’s mental status
was described as casual and appropriate, with logical and coherent thought process, denying
delusions, paranoia, or hallucinations. Plaintiff’s mood was noted as dysphoric with anxious
affect. Plaintiff denied suicidal or homicidal ideations, her behavior was tense, she was alert and
oriented, with intact insight and judgment, and Plaintiff was noted having denied substance
abuse. Ms. Emmons’ diagnosis for Plaintiff included MDD, recurrent, moderate. Plaintiff’s
treatment plan listed medication monitoring, and continued therapy with Tricia Clark (Docket
No. 13, pp. 601-602 of 635).

24

BuSpar is prescribed to treat anxiety. BuSpar oral: Uses, Side Effects, Interactions, Pictures, Warnings
& Dosing, WEBMD, (Oct. 14, 2014, 3:35 PM), http://www.webmd.com/drugs/2/drug-9036/buspar-oral/details.

14

d.

MENTAL STATUS QUESTIONNAIRE

On January 30, 2012, Ms. Emmons completed a Mental Status Questionnaire concerning Plaintiff. The
questionnaire reflects that Plaintiff was first seen on December 15, 2011 and last seen on January 12, 2012,
however, elsewhere on the form Ms. Emmons indicated that Plaintiff was only seen twice. Ms. Emmons
described Plaintiff’s appearance as appropriate, her flow of conversation spontaneous, having improved mood,
being less depressed and having anxious affect. Ms. Emmons indicated that Plaintiff has no thinking disorders,
is oriented x 3, has no problems with cognitive functions, and insight and judgment. Plaintiff’s diagnosis was
noted as Major Depression, recurrent, moderate and her medications are listed. According to Ms. Emmons,
Plaintiff is capable of managing any benefits due to her, and has no difficulties in remembering, understanding,
and following directions, maintaining attention, sustaining concentration, persisting at tasks, and completing
them in a timely fashion. Ms. Emmons indicated that it was unknown whether Plaintiff had any deficiencies in
social interaction or in Plaintiff’s reactions to the pressures in work settings involved in simple, routine or
repetitive tasks (Docket No. 13, pp. 580-582 of 635).
e.

ADULT DIAGNOSTIC ASSESSMENT UPDATE

The record also includes an Adult Diagnostic Update dated March 12, 2013, completed by Megan
Buesridge, a licensed social worker, concerning Plaintiff’s mental health treatment. The record reflects that
Plaintiff was continuing to experience anxiety and depression on a daily basis, had been victim of a house fire,
was grieving the loss of her mother, and details her history of present illness. Plaintiff’s primary diagnosis was
noted as MDD, recurrent and moderate secondary to Panic Disorder without Agoraphobia. Plaintiff was assessed
a GAF of 50. It was noted that Plaintiff reported feeling some nervousness, extreme tension, a bit of terror/panic,
extreme restlessness and that she was afraid to leave her home by herself. The update forms reflect Plaintiff was
referred for medication management and individual counseling (Docket No. 13, pp. 627-630 of 635).
C.

CONSULTATIVE PSYCHOLOGICAL EXAMINATION
15

1.

DR. JAMES F. SUNBURY, PH.D, ABPP

On February 7, 2012, Plaintiff underwent a clinical interview and psychological tests with Dr. Sanbury
to assess her intellectual functioning and mental status. During the interview, Plaintiff detailed her history of
present illness, family and educational history. It was noted that Plaintiff left high school in the ninth grade, was
enrolled in special education programs, and has not earned a GED. Plaintiff reported being employed as a
nurses’ aide. Dr. Sunbury noted that Plaintiff has not been previously hospitalized for psychiatric care, first
treated for depression with medication in 2004, denied alcohol abuse, but admitted being addicted to crack
fourteen years earlier. Plaintiff was described as obese, having pain in her hips and legs, and reported her
medications as Flexeril, Lisinopril, Neurontin, Spiriva, Januvia, and Simvastatin. Plaintiff denied any arrest
record. Dr. Sanbury indicated Plaintiff was a little unsteady on her feet, but that she was otherwise neatly
groomed and showed no signs of intoxication. Plaintiff was described as responsive to questions with no
obvious difficulty in speech or hearing. Dr. Sanbury indicated that Plaintiff reported that she cries often
including a little during the interview but that her mood and affect was not irritable or acutely upset. Dr.
Sanbury’s notes reflects that Plaintiff also reported experiencing anxiety. Dr. Sanbury found that Plaintiff
showed no signs of thought disorder, was alert and oriented to place and person, but operating within the
extremely low range of intellectual functioning. Dr. Sanbury opined that Plaintiff’s insight and judgment seemed
low-average. Results of Plaintiff’s Wechsler Adult Intelligence Scale-IV (WAIS-IV) test included a full scale
IQ of 64, which Dr. Sanbury noted was in the extremely low range and only 1% higher than non-institutionalized
adults in her age group. Dr. Sanbury’s diagnosis for Plaintiff included Depressive Disorder not otherwise
specified and assessed her a GAF score of 60 for moderate symptoms and a GAF score of 65 for functional
impairment. Dr. Sanbury’s functional assessment reflects that Plaintiff has no limitations for carrying out simple
instructions, and in responding appropriately to supervision or co-workers in a work setting. Dr. Sanbury
assessed Plaintiff mild limitations in her ability in maintaining attention, concentration, persistence, and pace
16

to perform simple and multi-step tasks, and in her ability to respond appropriately to pressures in a work setting
(Docket No. 13, pp. 585-591 of 635).
E.

AGENCY’S FINDINGS
1.

INITIAL CONSIDERATION
a.

DR. KARLA VOYTEN, PH.D. - PSYCHIATRIC REVIEW TECHNIQUE (PRT)

On February 22, 2012, Dr. Voyten rendered a PRT for Plaintiff under listings 12.04 Affective Disorders,
12.05 Mental Retardation, and 12.06 Anxiety-Related Disorders finding. For the ‘A’ criteria of the three listings,
Dr. Voyten concluded that there was insufficient evidence to substantiate the presence of a disorder under listing
12.05 and that Plaintiff had medically determinable impairments which did not precisely satisfy the diagnostic
criteria under listings 12.04 and 12.06. In her analysis of the ‘B’ criteria of listings 12.04 and 12.06, Dr. Voyten
found Plaintiff had mild restrictions in activities of daily living, and in maintaining concentration, persistence
or pace. Dr. Voyten found no restrictions for Plaintiff’s social functioning and found no evidence of
decompensation. There was also no evidence establishing the presence of the ‘C’ criteria under either listing.
Dr. Voyten indicated adopting, pursuant to the Drummond Ruling, the ALJ’s PRTF rendered on October 4, 2010.
Furthermore, Dr. Voyten concluded there was no evidence to support the low IQ testing rendered for Plaintiff
and that the examiner had failed to give a related diagnosis for intellectual limitation. Dr. Voyten also noted the
lack of evidence of an event to suggest recent onset of limitation in intellectual functioning (Docket No.13, pp.
184-186; 196-197 of 635).
b.

DR. WILLIAM BOLZ, M.D. - PHYSICAL RESIDUAL FUNCTIONAL CAPACITY (RFC)

On December 19, 2011, Dr. Bolz rendered a physical RFC for Plaintiff finding that she could
occasionally lift or carry 20 pounds, frequently lift or carry ten pounds, could stand, walk or sit, with normal
breaks, for about six hours during an eight-hour workday. Plaintiff was assessed environmental limitations,
including to avoid concentrated exposure to extreme cold, heat, humidity, fumes, odors, dusts, gases, and poor
17

ventilation. It was noted that this RFC was adopted from the prior ALJ RFC rendered on October 4, 2010 and
pursuant to the Drummond Rule (Docket No. 13, pp. 186-187; 198-199 of 635).
2.

RECONSIDERATION
a.

DR. VICKI WARREN, PH.D. - PRT

On May 7, 2012, Dr. Warren rendered her PRT for Plaintiff evaluating Plaintiff’s claim under listing
12.04, 12.05, and 12.06. Dr. Warren found that although medically determinable impairments were present,
none precisely satisfied the diagnostic ‘A’ criteria for any of the listings. In her analysis of the ‘B’ criteria of
the listings, Dr. Warren found Plaintiff had mild restrictions in activities of daily living and in maintaining
concentration, persistence or pace, but found no limitations in social functioning or repeated episodes of
decompensation. Dr. Warren determined there was no evidence of any ‘C’ criteria and noted that her PRT is
adopted under the Drummond Ruling. Dr. Warren also indicated there was no evidence to support a low IQ
finding (Docket No. 13, pp. 210-211; 223-225 of 635).
b.

DR. BRADLEY J. LEWIS, M.D. - PHYSICAL RFC

On May 8, 2012, Dr. Lewis rendered his physical RFC, finding Plaintiff capable of occasionally lifting
or carrying 20 pounds, frequently lifting or carrying 10 pounds, standing, walking, or sitting, with normal breaks,
for a total of about six hours during an eight-hour workday. Dr. Lewis assessed Plaintiff’s environmental
limitations, opining that she avoid concentrated exposure to extreme cold, heat, humidity, fumes, odors, dusts,
gases, and poor ventilation. Dr. Lewis noted that the RFC was an adoption of the ALJ RFC dated October 4,
2010 and pursuant to the Drummond Ruling. Dr. Lewis opined that Plaintiff had the RFC to perform light work,
but needed to be allowed to change positions as needed (Docket No. 13, pp. 213-214; 226-227 of 635).
III. STANDARD OF DISABILITY
The Social Security Act sets forth a five-step sequential evaluation process for determining whether an
adult claimant is disabled under the Act. See 20 C.F.R. § 416.920(a) (West 2014); Miller v. Comm’r Soc. Sec.,
18

2014 WL 916945, *2 (N.D. Ohio 2014). At step one, a claimant must demonstrate that she is not engaged in
“substantial gainful activity” at the time she seeks disability benefits. Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007)(citing Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). At step two, the claimant must show
that she suffers from a “severe impairment.” Colvin, 475 F.3d at 730. A “severe impairment” is one which
“significantly limits . . . physical or mental ability to do basic work activities.” Id. (citing Abbott, 905 F.2d at
923). At step three, the claimant must demonstrate that her impairment or combination of impairments meets
or medically equals the listing criteria set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §
416.920(d) (West 2014). If the claimant meets her burden she is declared disabled; however, if she does not,
the Commissioner must determine her residual functional capacity. 20 C.F.R. § 416.920(e) (West 2014).
A claimant’s residual functional capacity is “the most [the claimant] can still do despite [the claimant’s]
limitations.” 20 C.F.R. § 416.945(a) (West 2014). In making this determination, the regulations require the
Commissioner to consider all of the claimant’s impairments, including those that are not “severe.” 20 C.F.R. §
416.945(a)(2) (West 2014). At the fourth step in the sequential analysis, the Commissioner must determine
whether the claimant has the residual functional capacity to perform the requirements of the claimant’s past
relevant work. 20 C.F.R. § 416.920(e) (West 2014). Past relevant work is defined as work the claimant has done
within the past 15 years (or 15 years prior to the date of the established disability), which was substantial gainful
work, and lasted long enough for the claimant to learn to do it. 20 C.F.R. §§ 416.960(b), 416.965(a) (West
2014). If the claimant has the RFC to perform her past work, the claimant is not disabled. 20 C.F.R. § 416.920(f)
(West 2014). If, however; the claimant lacks the RFC to perform her past work, the analysis proceeds to the fifth
and final step. Id.
The final step of the sequential analysis requires the Commissioner to consider the claimant’s residual
functional capacity, age, education, and work experience to determine whether the claimant can make an
adjustment to other work available. 20 C.F.R. §§ 416.920(a)(4)(v), (g) (West 2014). While the claimant has
19

the burden of proof in steps one through four, the Commissioner has the burden of proof at step five to show
“that there is work available in the economy that the claimant can perform.” Her v. Comm’r of Soc. Sec., 203
F.3d 388, 391 (6th Cir. 1999). The Commissioner’s finding must be “supported by substantial evidence that [the
claimant] has the vocational qualifications to perform specific jobs.” Varley v. Sec’y of Health & Human Servs.,
820 F.2d 777, 779 (6th Cir. 1987)(citation omitted). If a claimant can make such an adjustment the claimant will
be found not disabled. 20 C.F.R. §§ 416.920(a)(4)(v), (g) (West 2014). If an adjustment cannot be made then
the claimant is disabled. Id.
IV. COMMISSIONER’S FINDINGS
After careful consideration of the disability standards and the entire record, ALJ Dowling made the
following findings:
1.

Plaintiff meets the insured status requirements of the Social Security Act through December 31,
2016.

2.

Plaintiff has not engaged in substantial gainful activity since September 1, 2008, the alleged onset
date.

3.

Plaintiff has the following severe impairments: degenerative disc disease, obesity, chronic
obstructive pulmonary disease, and major depressive disorder.

4.

Plaintiff does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.

5.

After careful consideration of the entire record, ALJ Dowling found that Plaintiff has the residual
functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b)
except she requires work that allows for alternating between sitting and standing at will, provided
Plaintiff remains productive. Finally, Plaintiff is limited to work that requires only simple,
routine tasks.

6.

Plaintiff is unable to perform any past relevant work.

7.

Plaintiff was born on February 26, 1962 and was 46 years old, which is defined as a younger
individual age 18-49, on the alleged disability onset date. Plaintiff subsequently changed age
category to closely approaching advanced age.

20

8.

Plaintiff has a limited education and is able to communicate in English.

9.

Transferability of job skills is not material to the determination of disability because using the
Medical-Vocational Rules as a framework supports a finding that Plaintiff is “not disabled,”
whether or not Plaintiff has transferable job skills.

10.

Considering Plaintiff’s age, education, work experience, and residual functional capacity, there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform.

11.

Plaintiff has not been under a disability as defined in the Social Security Act from September 1,
2008, through the date of this decision.

(Docket No. 13, pp. 70-80 of 635).
V. STANDARD OF REVIEW
This Court exercises jurisdiction over the final decision of the Commissioner pursuant to 42 U.S.C. §
405(g) and 42 U.S.C. § 1383(c)(3). McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 832-33 (6th Cir. 2006).
On review, this Court must affirm the Commissioner’s conclusions unless the Commissioner failed to apply the
correct legal standard or made findings of fact that are unsupported by substantial evidence. Id. (citing Branham
v. Gardner, 383 F.2d 614, 626-27 (6th Cir. 1967)). The “findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive.” Miller, 2014 WL 916945, at *3 (quoting
42 U.S.C. § 405(g)). “The substantial-evidence standard requires the Court to affirm the Commissioner’s
findings if they are supported by ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). Substantial evidence is more than a scintilla of evidence but less than a preponderance.”
Miller, (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007)). “An ALJ’s failure to follow
agency rules and regulations ‘denotes a lack of substantial evidence, even where the conclusion of the ALJ may
be justified based upon the record.’” Cole, 661 F.3d at 937 (quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 407 (6th Cir. 2009). “The findings of the Commissioner are not subject to reversal merely because there
exists in the record substantial evidence to support a different conclusion . . . This is so because there is a ‘zone
21

of choice’ within which the Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246
F.3d 762, 772 (6th Cir. 2001)(citations omitted).
VI. DISCUSSION
A.

PLAINTIFF’S ALLEGATIONS
Plaintiff alleges that the ALJ’s decision is not supported by substantial evidence and argues: (1) that the

ALJ’s RFC analysis for Plaintiff fails to account for her IQ and moderate difficulties with concentration,
persistence or pace; and (2) the ALJ erred in failing to apply the medical/vocational guidelines to her case
because it would have led to the conclusion that she is disabled (Docket No. 17).
B.

DEFENDANT’S ALLEGATIONS
Defendant maintains that the ALJ’s mental RFC was properly assessed, consistent with Plaintiff’s IQ

score, and within the ALJ’s zone of choice (Docket No. 20, pp. 7-9 of 13). Defendant argues that the ALJ’s
consideration of the VE was reasonable since Plaintiff offered no medical evidence to support her testimony that
she can only stand one and one-half hours per day (Docket No. 20, p. 9 of 13).
C.

ANALYSIS
1.

THE ALJ’S RFC ASSESSMENT ADEQUATELY ADDRESSES PLAINTIFF’S MENTAL LIMITATIONS

Plaintiff first alleges that the ALJ’s RFC assessment is not supported by substantial evidence since the
ALJ found Plaintiff had moderate difficulties with concentration, persistence or pace, but only assessed Plaintiff
a limitation in her RFC for simple routine tasks (Docket No. 17, pp. 9-10 of 12). Citing Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504 (6th Cir. 2010), Plaintiff argues that the ALJ’s RFC does not adequately portray Plaintiff’s
limitations (Docket No. 17, p. 10 of 12). Defendant disagrees and argues that Ealy does not provide a bright-line
rule that limitations to simple and repetitive tasks cannot account for a moderate limitation in concentration,
persistence or pace (Docket No. 20, pp. 7-8 of 13). Defendant also contends that Plaintiff has also failed to
demonstrate with evidence that she has any greater limitations than those assessed by the ALJ (Docket No. 20,
22

pp. 8-9 of 13). Plaintiff misconstrues the effect of the ALJ’s findings at step-three of the sequential analysis on
steps four and five.
At step-three of the five-step sequential analysis for evaluating a disability claim, the ALJ was required
to determine whether the claimant has an impairment or combination of impairments that meets or medically
equals one of the listed impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1. See 20 C.F.R. § 416.920(d)
(West 2014). Part of the step-three analysis requires the ALJ to use a special technique set forth under the
regulations for evaluating mental impairments, which includes rating the degree of functional limitation resulting
from the claimant’s impairment. 20 C.F.R. § 416.920a(a)-© (West 2014). The regulations identify four broad
functional areas under which the ALJ must render a rating: Activities of daily living; social functioning;
concentration, persistence or pace; and episodes of decompensation. 20 C.F.R. § 416.920a(c)(3) (West 2014).
The rating scale, which is also defined by regulations, includes the following five-point scale: None, mild,
moderate, marked, and extreme, which is used to rate all but episodes of decompensation. 20 C.F.R.
416.920a(c)(4) (West 2014). In evaluating the severity of Plaintiff’s impairment(s) under the “paragraph B”
criteria of listing 12.04, the ALJ found, in relevant part, that Plaintiff had moderate difficulties in concentration,
persistence or pace in accordance with the regulations (Docket No. 13, p. 74 of 635). See 20 C.F.R. §
416.920a(e)(4) (West 2014). Citing this finding, Plaintiff argues that the ALJ’s RFC failed to account for
Plaintiff’s “moderate difficulties with regards to concentration, persistence or pace” (Docket No. 17, pp. 9-10
of 12). In so arguing, Plaintiff overlooks the disclaimer at the end of his step-three analysis and SSR 96-8p,
which provides:
The psychiatric review technique described in 20 C.F.R. 404.1520a and 416.920a and
summarized on the Psychiatric Review Technique Form (PRTF) requires adjudicators to assess
an individual’s limitations and restrictions from a mental impairment(s) in categories identified
in the “paragraph B” and “paragraph C” criteria of the adult mental disorders listings. The
adjudicator must remember that the limitations identified in the “paragraph B” and “paragraph
C” criteria are not an RFC assessment but are used to rate the severity of mental impairment(s)
at steps 2 and 3 of the sequential evaluation process. The mental RFC used at steps 4 and 5 of
23

the sequential evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraphs B and C of the adult mental
disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF.
SSR 96-8p, 1996 WL 374184, *4 (July 2, 1996)(emphasis added). Given the ALJ’s findings at step-three are
not part of the RFC assessment, the ALJ did not find Plaintiff’s RFC included moderate limitations for
concentration, persistence or pace. Instead, the ALJ limited Plaintiff to light work that allows for alternating
between sitting and standing at will and a limitation to work that requires only simple, routine tasks, which the
ALJ determined was necessary because Plaintiff’s mental impairments have worsened (Docket No. 13, pp. 75;
78 of 635).
Although Plaintiff cites to Dr. Sunbury’s findings concerning Plaintiff’s IQ and low WAIS-IV scores
to suggest that Plaintiff has moderate limitations in concentration, persistence or pace, Dr. Sunbury’s functional
assessment does not support such a finding. Instead, Dr. Sunbury opined that Plaintiff has no limitations for
simple instructions and only mild limitations for learning new multi-step tasks and responding appropriately to
pressures in a work setting (Docket No. 13, p. 589 of 635). Moreover, none of the opinion evidence the ALJ
weighed most favorably supports more than a limitation for simple and repetitive tasks (Docket No. 13, pp. 167168; 186-187; 198-199; 580-582 of 635). While Plaintiff cites Ealy and suggests that this case be remanded
because the ALJ did not adequately address Plaintiff’s mental limitations in his hypothetical question to the VE,
Ealy is inapplicable to this case (Docket No. 17, p. 10 of 12). The relevant facts of Ealy involved whether the
ALJ’s hypothetical question accurately reflected the claimant’s limitations at step-five of the sequential analysis.
Ealy, 594 F.3d at 511, 516-17. After reviewing the transcript, the Sixth Circuit reversed and remanded Ealy,
holding in relevant part, that the ALJ erred by posing a hypothetical question to the ALJ, which omitted speed
and pace-based restrictions that the ALJ determined the claimant had. Id. at 516-17.
Once an ALJ determines at step-four that a claimant does not have the residual functional capacity to
perform his or her past relevant work, the burden shifts to the Commissioner to show that the claimant has the
24

capacity to perform other substantial gainful activity in the national economy. Varley, 820 F.2d at 779 (citation
omitted). In order for the Commissioner to meet its burden, it must find substantial evidence that the claimant
has the vocational qualifications to perform specific jobs in the national economy. See O’Banner v. Sec’y of
Health, Educ. & Welfare, 587 F.2d 321, 323 (6th Cir. 1978). “Substantial evidence may be produced through
reliance on the testimony of a vocational expert in response to a hypothetical question, but only if the question
accurately portrays Plaintiff’s individual and mental impairments.” Varley, 820 F.2d at 779 (quoting
Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)). In this case, unlike Ealy, the ALJ’s hypothetical
question to the VE included a limitation for simple and routine tasks, which is consistent with the ALJ’s RFC
assessment, analysis, and the opinion evidence he weighed most favorably (Docket No. 13, p. 114 of 635).
Accordingly, the undersigned Magistrate finds the ALJ’s RFC and hypothetical questions adequately
addressed Plaintiff’s mental limitations.
2.

THE ALJ’S RELIANCE ON THE VE’S TESTIMONY TO FIND PLAINTIFF
PERFORMING OTHER WORK IS SUPPORTED BY SUBSTANTIAL EVIDENCE

CAPABLE OF

Next, Plaintiff alleges that the ALJ erred in his analysis of whether she could perform other work, arguing
the ALJ should have credited the VE’s testimony that a limitation for standing for one and one-half hours during
a normal eight-hour workday is more closely aligned with sedentary work, which given Plaintiff’s age, limited
education and non-transferrable skills, should have led to a finding that she is disabled pursuant to the vocational
guidelines (Docket No. 17, pp. 10-11 of 12). Plaintiff supports her argument by citing her own testimony that
she could only stand for one and a half hours during a normal eight-hour work day because of hip and leg pain
(Docket No. 17, p. 11 of 12). Defendant contends that there is no evidence to support Plaintiff’s claim that she
is only capable of standing for one and a half hours (Docket No. 20, p. 10 of 13).
“The SSA’s burden at the fifth step is to prove the availability of jobs in the national economy that the
claimant is capable of performing.” Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008)(citing Her,

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203 F.3d at 391). The Sixth Circuit has held that “the SSA may not rely on the grids to meet its step-five burden
where the evidence shows that a claimant has nonexertional impairments that preclude the performance of a full
range of work at a given level.” Id. at 424 (citing Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990); Damron
v. Sec’y of Health & Human Servs., 778 F.2d 279, 282 (6th Cir. 1985)). Reliance on the grids alone is only
appropriate where a claimant suffers from an impairment limiting his or her exertional capabilities. Jordan, 548
F.3d at 424.25
In this case, the ALJ’s decision reflects that he considered the Medical-Vocational Guidelines with
respect to Plaintiff’s limitations, and relied on the testimony of the VE to determine the extent to which
Plaintiff’s limitations have eroded the unskilled light occupational base in order to evaluate whether jobs exist
in the national economy which an individual with Plaintiff’s age, education, work experience and RFC would
be able to perform (Docket No. 13, pp. 79-80 of 635). The VE provided testimony that given Plaintiff’s RFC,
and vocational background, a hypothetical individual would be able to perform the representative occupations
of office helper, ticket seller, and cashier, which the ALJ determined was consistent with the information
contained in the DOT (Docket No. 13, pp. 79-80 of 635). It is well-settled, that substantial evidence at the fifth
step may be produced through the ALJ’s reliance on the testimony of a VE in response to a hypothetical question
that accurately portrays a plaintiff’s impairments. See Varley, 820 F.2d at 779.
Plaintiff’s argument that she should have been evaluated under a RFC for sedentary work relies upon

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The SSA defines exertional and nonexertional limitations as follows:

Exertional limitations. When the limitations and restrictions imposed by your impairment(s) and
related symptoms, such as pain, affect only your ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying pushing, and pulling), we consider that you have only exertional
limitations.
Nonexertional limitations. When the limitations and restrictions imposed by your impairment(s) and
related symptoms, such as pain, affect only your ability to meet demands of jobs other than the
strength demands, we consider that you have only nonexertional limitations or restrictions.
Jordan, 548 F.3d at 423 (citing 20 C.F.R. §§ 404.1569a(b), (c).(West 2014)).

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unsubstantiated testimony that she can only be on her feet for one and a half hours (Docket No. 17, p. 11 of 12).
The Sixth Circuit has held that an “ALJ is not obligated to incorporate unsubstantiated complaints into his
hypotheticals.” Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 118-19 (6th Cir. 1994)(citing Hardaway
v. Sec’y of Health & Human Servs., 823 F.2d 922, 927-28 (6th Cir. 1987)). In this case, the ALJ found that
Plaintiff presented sincerely, but he did not find that her claims concerning the severity of her symptoms or the
extent of her incapacitation were supported by the evidence of record (Docket No. 13, pp. 77-78 of 635). The
ALJ reasoned that there was no evidence to support Plaintiff’s claim that her condition had worsened much since
the administrative hearing held in her prior disability case on October 4, 2010 (Docket No. 13, p. 161 of 635).
After reviewing the record in this case, the undersigned finds the ALJ’s summary of Plaintiff’s physical
condition is consistent with the summary provided in the ALJ’s decision (Docket No. 13, p. 76 of 635).
Plaintiff’s medical records reflect that on April 14, 2009, an MRI revealed that Plaintiff had multiple levels of
degenerative disc change with joint anthropathy and mild spinal stenosis at L4-5 (Docket No. 13, pp. 76; 461462 of 635). On July14, 2009, Dr. Toward opined that Plaintiff has lumbago, lumbar disc degeneration, and
chronic pain syndrome (Docket No. 13, pp. 505-507 of 635). Throughout the remainder of Plaintiff’s medical
record, it is noted that she complained about pain, but there is no indication that Plaintiff suffered difficulties
from standing or walking. There is also no objective medical evidence or findings to suggest that her physical
condition has declined or progressed to the extent she alleges. Similarly, no medical source has rendered an
opinion, findings, or provided objective evidence to support Plaintiff’s claim that she can only stand for one and
a half hours during an eight-hour workday.
Since the medical record does not support Plaintiff’s claim concerning her ability to stand, the ALJ did
not err by failing to credit it. Therefore, the undersigned Magistrate finds the ALJ’s reliance on the VE’s
testimony that Plaintiff is capable of performing other work is supported by substantial evidence.

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VII. CONCLUSION
For the foregoing reasons, the Magistrate affirms the Commissioner’s decision.
IT IS SO ORDERED.
/s/Vernelis K. Armstrong
United States Magistrate Judge
Date: January 7, 2015

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