Dvorak v. Commissioner of Social Security Administration

Filing 26

Memorandum Opinion and Order that the decision of the Commissioner denying Dvorak's applications for disability insurance benefits and supplemental security income is affirmed. (Related Docs. # 1 , 21 ). Signed by Magistrate Judge William H. Baughman, Jr., on 2/7/2017. (S,MD)

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

BEVERLY DVORAK,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:15 CV 2319

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Beverly Lynn Dvorak under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and

1

ECF # 21. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 8.

4

ECF # 9.

5

ECF # 5.

procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Dvorak who was 53 years old at the time of the administrative hearing,11 graduated

high school12 and lives with her daughter and boyfriend.13 Her past relevant employment
experience includes work as a cashier and accounting clerk.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Dvorak had the following severe impairments: degenerative arthritis of lumbosacral spine
with foraminal stenosis, degenerative changes of cervical spine, and history of labyrinthine
disorder (20 CFR 404.1520(c) and 416.920(c)).15

6

ECF # 10.

7

ECF # 19 (Commissioner’s brief); ECF # 13 (Dvorak’s brief).

8

ECF # 19-1 (Commissioner’s charts); ECF # 13-1 (Dvorak’s charts).

9

ECF # 14 (Dvorak’s fact sheet).

10

ECF # 25.

11

ECF # 14 at 1.

12

Id.

13

ECF # 9, Transcript (“Tr.”) at 40.

14

Id. at 21.

15

Id. at 17.
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After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Dvorak’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b), except she cannot climb ladders,
ropes, or scaffolds; can frequently climb ramps and stairs; can frequently
perform balancing, stooping, kneeling, crouching, crawling and overhead
reaching; and should have no exposure to hazards, meaning no heights,
machinery, or commercial driving (20 CFR 404.1569a and 416.969a).16

Given that residual functional capacity, the ALJ found Dvorak capable of her past relevant
work as an accounting clerk and cashier and, therefore, not under a disability.17
B.

Issues on judicial review
Dvorak asks for reversal of the Commissioner’s decision on the ground that it does

not have the support of substantial evidence in the administrative record. Specifically,
Dvorak presents the following issues for judicial review:
•

Whether the ALJ erred in failing to perform a proper pain analysis.18

•

Whether the ALJ erred when he determined that plaintiff’s mental
health impairments were not severe impairments.19

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.

16

Id. at 19.

17

Id. at 21.

18

ECF # 13 at 1.

19

Id.
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Analysis
A.

Standard of review

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
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 of choice” within which the
Commissioner can act, without the fear of court interference.20

Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner

20

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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survives “a directed verdict” and wins.21 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.22
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of standards
Dvorak here argues that the ALJ failed to properly analyze her complaints of disabling

spinal pain,23 and that the ALJ erred by not finding her mental impairments to be severe.24
The allegations will be addressed individually below.
1.

Pain analysis
Dvorak maintains that the ALJ in this instance failed to consider all seven factors set

forth by the regulations concerning pain, while conceding that a valid analysis need only
demonstrate that all the evidence relevant to the pain complaint has been considered.25
Initially, at Step Two the ALJ found that Dvorak’s degenerative arthritis of the
lumbosacral spine with foraminal stenosis and degenerative changes of the cervical spine

21

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
22

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

23

ECF # 13 at 8 -11.

24

Id. at 12 - 14.

25

Id. at 9 (citing Cross v. Comm’r of Soc. Sec., 373 F. Supp. 2d 724, 732-33 (N.D.
Ohio 2005)).
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were severe impairments.26 At Step Three the ALJ concluded that neither of these
impairments, or any combination of them, met or equaled the relevant listings.27 As to Listing
1.04, the ALJ noted that in the case of these two impairments, neither one was accompanied
by a finding that they compromised the nerve root of the spinal cord with evidence of nerve
root compression “characterized by neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss accompanied by sensory or reflex loss and, if there is involvement
of the lower back, positive straight leg raising test.”28
The ALJ then discussed Dvorak’s own testimony about the limiting effects of her
pain, noting that she stated that the pain was an “8 or 9 on a 1-10 scale,” that “[m]edication
does help” with the pain, and that she previously participated in physical therapy, but does
not wear a TENS unit and has not had surgery.29
The ALJ then noted the medical evidence, including a report from “Dr. Steven
Archaki, M.D.,”30 shows that Dvorak does indeed have back pain from her physical
impairments, but also found that she has “normal range of motion, no edema or joint

26

Tr. at 17.

27

Id. at 18.

28

Id.

29

Id. at 19-20.

30

The ALJ renders the name as “Steven Archaki,” while the records show it is
properly “Stephen Archarcki.” See, id. at 308. For her part, Dvorak renders it alternatively
as “Stephen Archacki” (ECF # 13 at 9) and “Stephen Archak.” (ECF # 13, Attachment at 2).
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tenderness, negative straight leg raising and normal motor strength.”31 The ALJ further
observed that the treatment Dvorak has received for her back condition “has been
conservative and symptomatic, including medication and physical therapy.”32
He then considered the records from the Cleveland Clinic Pain Management Center,
where he observed that Dvorak told them that her low back pain was “3 at best on a 1-10
scale and 6-7 at worst” - a pain level, the ALJ noted, that was “lower than the 8-10 level she
testified to at the hearing.”33 Dvorak reported a higher level of pain the next month, after
taking a car trip out of state over the weekend.34 The ALJ determined that undertaking such
a trip was itself inconsistent with Dvorak’s testimony as to her limitations at the hearing,35
which included the statement that she could sit for only 30 minutes at a time.36 The ALJ also
directly noted that at the end of the period of physical therapy, Dvorak self-described her
level of pain as “2/10.”37

31

Tr. at 20.

32

Id. (citing record).

33

Id.

34

Id.

35

Id.

36

Id. at 19.

37

Id. at 20 (citing record).
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Additionally, the ALJ addressed the functional opinion of Dvorak’s physical therapist,
Thomas O’Maille.38 After initially finding that this opinion was based in part on Dvorak’s
own subjective claims of her functional limitations, such as on her answers to a
questionnaire,39 the ALJ noted that O’Maille only had a relationship with Dvorak for three
weeks when he offered a functional capacity opinion.40 Moreover, the ALJ took note of the
fact that physical therapists are not acceptable medical sources for functional opinions.41
Finally, the ALJ stated that he was not adopting the prior physical residual functional
capacity findings of the ALJ in a prior case, which were followed by the State agency
reviewer, but was reviewing the new evidence supplied in this matter and so finding a less
restrictive RFC.42
Dvorak’s arguments here center on the fact that the ALJ did not discuss specific items,
such Dr. Archaki’s diagnosis of chronic pain syndrome, and the particular examination notes
from her physical therapist that record various limitations to her range of motion and
decreases of strength.43 She also contends that a more complete analysis would have
discussed how her pain affected her ability to sit, stand and walk, and how it interfered with

38

Id.

39

Id. (citing record).

40

Id. (citing record).

41

Id. (citing regulations).

42

Id. at 21(citing record).

43

ECF # 13 at 9 -10.
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sleep, thus potentially disrupting concentration, causing absenteeism, and requiring extra
breaks.44
While Dvorak is correct that disabling pain will surely have an effect on things like
sleep and on the ability to comfortably sit, walk or stand, the essential findings of the ALJ
were that Dvorak’s allegation as to the level of her pain was not credible and so the pain was
not disabling, thus obviating any further discussion of how disabling pain might interact with
other activities. To that end, the critical findings were that Dvorak herself rated her pain as
only minimal - a 2 out of 10 - at the end of her physical therapy, her own testimony that
medication helps relieve the pain, the fact that she undertook a long car trip to Georgia and
that she has “no limitations” in her activities of daily living.45
In the end, Dvorak’s own testimony about the levels of pain after physical therapy,
as well as about her own activities, provides sufficient evidence to find that her complaints
of pain are not credible and that whatever the level of pain may be, it is not disabling.46 The
mere fact that Dr. Archacki diagnosed her with chronic pain syndrome47 is not, of itself, any
evidence of the severity of that condition,48 nor - absent any particular evidence of severity -

44

Id. at 11.

45

See, tr. at 17

46

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392-93 (6th Cir. 2004).

47

ECF # 13 at 9.

48

See, Noel v. Astrue, No. 4:12 CV 1062, 2013 WL 1728890, at * 7 (N.D. Ohio March
18, 2013)(collecting cases); R&R adopted, Noel v. Comm’r of Soc. Sec., No. 4:12 CV 1062,
2013 WL 1728888 (N.D. Ohio April 22, 2013).
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does a mere diagnosis require a further discussion in the credibility analysis regarding her
claims of pain.
Therefore, inasmuch as the ALJ here considered the relevant and applicable factors
set forth in the regulations concerning an evaluation of a complaint of disabling pain, as is
set forth above, including the objective medical evidence, the reports of treating or examining
physicians, and the claimant’s own testimony, I find that there is no “compelling reason” in
the record to disturb the conclusion of the ALJ in this regard,49 which is otherwise supported
by substantial evidence, and is entitled to “great weight and deference” by the reviewing
court.50
2.

Severity of mental impairments
Dvorak argues here that the ALJ erred at Step Two in not finding that her mental

impairments were severe.51
In this instance, the ALJ determined, as did the previous ALJ, that there was no severe
mental impairment.52 In support of that finding, the ALJ noted that Dvorak’s treating
internist, Dr. Archacki, reported no mental impairment, but further observed that treatment
records from the Cleveland Free Clinic show that she was being treated for mild anxiety

49

Smith v. Halter, 307 F. 3d 377, 379 (6th Cir. 2001).

50

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).

51

ECF # 13 at 12.

52

Tr. at 17.
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every three weeks, and was taking Zoloft for that condition.53 The ALJ also noted that a
psychological consultative examination by Jeff Rindsberg, Ph. D., found that Dvorak had a
generalized anxiety disorder with a GAF score of 65, which the ALJ observed, “indicat[ed]
mild symptoms and functional limitations.”54
Moreover, the ALJ examined Dvorak’s level of functioning in the four areas of
functioning frequently referred to as the “paragraph B” criteria of Listing 12.00C, which
deals with evaluating mental disorders.55 In that review, the ALJ found that Dvorak has:
•

“no limitation” in the area of activities of daily living, citing her ability
to shop, handle money, assist in the care of her mother and her pets, and
drive herself;

•

“mild limitation” in the area of social functioning, noting that Dvorak
goes out to lunch or dinner with friends, and attends a high school
alumni meeting once a week;

•

“mild limitation” in the area of maintaining concentration, persistence
and pace, here observing that despite Dvorak’s complaints in this area,
the results of tests administered by Dr. Rindsberg show that she can
“maintain attention and concentration to perform simple and multi-step
tasks;” and

•

no limitation as the result of episodes of decompensation since “the
claimant has experienced no episodes of decompensation that have
been of extended duration.”56

53

Id. (citing record).

54

Id. (citing record).

55

Id. (citing 20 C.F.R., Part 404, Subpart P, Appendix 1).

56

Id. at 17-18 (citing record).
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Therefore, the ALJ concluded that “because [Dvorak’s] medically determinable
mental impairment causes no more than ‘mild’ limitation in any of the first three functional
areas and ‘no’ episodes of decompensation which have been of extended duration in the
fourth area, it is non-severe.”57
While Dvorak contends that the medical records show that her anxiety and worry were
affecting her sleep and concentration, and so having more than a de minimus effect on her
ability to perform work-related functions,58 the only medical source in the record to provide
an opinion as to the extent of any functional limits arising from Dvorak’s mental condition
was that of Dr. Rinsberg, which opinion, as noted, the ALJ cited often and relied upon in
concluding that any mental impairment was only “mild” and not severe. As I noted in Smith
v. Commissioner of Social Security,59 an ALJ may properly rely on the opinion of an
acceptable medical source as to the severity of claimant’s impairment.60 That reliance would
seem particularly appropriate when, as here, that opinion as to severity is not contradicted
by any other acceptable medical source opinion in the record.
I find no error in the ALJ determination that Dvorak’s mental impairment was not
severe.

57

Id. at 18 (citing regulations).

58

ECF # 13 at 13-14.

59

Smith v. Comm’r of Soc. Sec., No. 5:13 CV 870, 2014 WL 1944247 (N.D. Ohio
May 14, 2014).
60

Id. at * 9 (citations omitted).
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Conclusion
Substantial evidence supports the ALJ’s findings that Dvorak did not have a severe
mental impairment and spinal impairments did not cause limitations beyond those set out in
the RFC. The decision of the Commissioner, therefore, is hereby affirmed.
IT IS SO ORDERED.
Dated: February 7, 2017

s/ William H. Baughman, Jr.
United States Magistrate Judge

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