Ferguson v. Commissioner of Social Security

Filing 21

Opinion & Order signed by Judge James S. Gwin on 2/13/17. The Court, for the reasons set forth in this order, overrules plaintiff's objections, adopts the Magistrate Judge's Report and Recommendation, and affirms the Administrative Law Judge's denial of benefits. (Related Docs. 3 and 19 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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JOHN C. FERGUSON, IV,
Plaintiff,
vs.
COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

CASE NO. 1:15-CV-2714

OPINION & ORDER
[Resolving Docs. 3, 19]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
I. Introduction
On December 20, 2015, Plaintiff John C. Ferguson, IV, brought a claim for wrongful
denial of disability insurance benefits.1 On January 25, 2017, Magistrate Judge James R. Knepp,
II, recommended dismissing the case.2 For the reasons stated below, this Court OVERRULES
Plaintiff’s objections and ADOPTS the Magistrate Judge’s Recommendation.
II. Background
On March 19, 2012, Plaintiff Ferguson applied for disability insurance benefits (“DIB”).3
Plaintiff’s claimed onset date was February 1, 2010.4 He was 37 years old at the time.

1

Doc. 3. The Commissioner of Social Security answered. Doc. 12.
Doc. 19. Plaintiff objects. Doc. 20.
3
Doc. 13 at 151.
4
Id. at 21.
2

Case No. 1:15-CV-2714
Gwin, J.
Plaintiff requested benefits based on several conditions, including (1) complications from
HIV; (2) complications from a 1994 bullet wound in his back; and (3) various mental health
issues.5 Plaintiff’s claim was denied.6
Plaintiff then requested a hearing before an administrative law judge (“ALJ”).7 After a
June 2, 2014 hearing, the ALJ found that Plaintiff was not disabled.8 The ALJ reasoned that
neither Plaintiff’s physical impairments nor his mental deficiencies rose to the level of disability
under federal law.
The ALJ reached his decision despite clinical psychiatrist Richard C. Halas’ opinion—
provided at the state’s request—that Plaintiff suffers from dysthymia, generalized anxiety
disorder, and borderline personality disorder, and has a global assessment functioning score of
45, which indicates “serious symptoms.”9 The ALJ was unpersuaded by Dr. Halas’ opinion
because Plaintiff had not previously received mental health treatment, and Plaintiff himself
ascribed his functional deficiencies to his physical rather than emotional problems.10
The ALJ concluded that although Plaintiff had certain limitations, viable employment
was available between February 1, 2010, the onset date, and March 31, 2013, Plaintiff’s last date
insured according to the ALJ.11
The ALJ mistakenly identified Plaintiff’s date last insured as March 31, 2013. In fact,
Plaintiff’s date last insured was September 30, 2013.12

5

Id. at 15-16. Specifically, Plaintiff testified at the ALJ hearing that he has severe gastrointestinal issues due to his
HIV medication; lower back and shoulder pain from a bullet wound; and generalized anxiety disorder, depression,
and other mental health issues. Id. at 15-17. In regard to his mental health, Plaintiff also testified that he does not
believe he has mental health problems, but that his physical health leads to mental stress. Id. at 47.
6
Id. at 82 (initial denial), 97 (denial upon reconsideration).
7
Id. at 107-108.
8
Id. at 13-23.
9
Id. at 17.
10
Id. at 17, 20 (ALJ noting that Dr. Halas’ opinion was “afforded partial weight”).
11
Id. at 22.
12
Id. at 23.

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Gwin, J.
The Appeals Council denied Plaintiff’s request for review.13
On December 20, 2015, Plaintiff brought a claim for wrongful disability benefits denial
in this Court.14 Plaintiff cites three alleged errors in the ALJ’s decision: (1) the ALJ failed to
correctly identify Plaintiff’s back pain as a severe impairment; (2) the ALJ misidentified the date
last insured; and (3) the ALJ erred in his consideration of the opinion of the consultative
examiner, Dr. Halas.15
On January 25, 2017, Magistrate Judge James R. Knepp, II, recommended dismissing the
case.16 In the report and recommendation (“R&R”), Magistrate Judge Knepp found that (1) the
ALJ adequately supported his conclusion that Plaintiff’s back pain was not severe; (2) the
residual functional capacity (“RFC”) finding was supported by substantial evidence; (3) the
ALJ’s misidentification of Plaintiff’s date last insured was harmless error; and (4) the weight
afforded to Dr. Halas’ opinion was not legal error and the ALJ’s conclusion as to Plaintiff’s
mental health was otherwise supported by substantial evidence.17
On February 8, 2017, Plaintiff Ferguson filed objections to the R&R.18 Ferguson argues
(1) the ALJ’s finding of no severe physical impairment lacked substantial evidence; and (2) the
ALJ improperly evaluated Dr. Halas’ opinion.19

13

Id. at 1-4.
Doc. 3.
15
Doc. 14. The Commissioner opposed. Doc. 17. In the R&R, the Magistrate Judge identifies four distinct
arguments from Plaintiff, including allegations that the ALJ did not properly consider Plaintiff’s back pain in
formulating the RFC assessment. Doc. 19 at 15. The Court finds this argument to be somewhat synonymous with
Plaintiff’s first argument concerning the ALJ’s assessment of Plaintiff’s back pain. Plaintiff himself identifies only
three distinct arguments in his merits brief. Doc. 14 at 6, 10, 12. Thus, the Court addresses this argument as part and
parcel of Plaintiff’s first argument against the ALJ decision.
16
Doc. 19.
17
Id. at 15-31.
18
Doc. 20.
19
Id. at 2-5.
14

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Gwin, J.
III. Legal Standard
In reviewing an ALJ’s disability determination under the Social Security Act, a district
court reviews whether the ALJ’s decision is “supported by substantial evidence and [is] made
pursuant to proper legal standards.”20 Substantial evidence is defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”21
A district court is limited in what it can review. Specifically, a district court should not
try to resolve “conflicts in evidence or decide questions of credibility.”22 A district court also
may not reverse an ALJ’s decision when substantial evidence supports it, even if the court would
have made a different decision.23
Substantial evidence is more than a scintilla of evidence, but less than a preponderance.24
This Court cannot reverse the ALJ’s decision, even if substantial evidence exists in the record
that would have supported an opposite conclusion, so long as substantial evidence supports the
ALJ’s conclusion.25
To establish disability under the Social Security Act, a plaintiff must show that she
cannot 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.”26 Agency regulations establish a
five-step sequential evaluation for use in determining whether a claimant is disabled.27

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); see also 42 U.S.C. § 405(g).
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
22
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
23
See Siterlet v. Sec. of Health and Human Servs., 823 F.2d 918, 920 (6th Cir. 1987); see also Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (holding that the ALJ’s decision cannot be overturned so long as the
ALJ’s decision was supported by substantial evidence).
24
Richardson v. Perales, 402 U.S. 389, 401 (1971).
25
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997).
26
See 42 U.S.C. § 423(d); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001).
27
During Step One, the ALJ determines whether the claimant is engaged in a “substantial gainful activity” at the
time he or she seeks disability benefits. Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). In Step Two, the
Plaintiff must show that he or she “suffers from a severe impairment in order to warrant a finding
20
21

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Gwin, J.

IV. Discussion
This Court reviews Ferguson’s objections de novo.28 Although Plaintiff makes only two
distinct objections, Plaintiff’s first objection appears to disagree with the R&R’s first three
findings. Plaintiff’s second objection applies to the Magistrate Judge’s fourth finding.
A. Severe Impairment
Plaintiff argues that the ALJ failed to correctly identify Plaintiff’s back pain as a severe
impairment.29 Plaintiff further argues that the ALJ’s misidentification of Plaintiff’s last date
insured led to the inaccurate conclusion that Plaintiff’s gastrointestinal issues were not a severe
impairment.30 The Court addresses each argument in turn.
Back Injury
A severe impairment is one which “which significantly limits [the applicant’s] physical
or mental ability to do basic work activities.”31 In the Sixth Circuit, “an impairment can be
considered not severe only if it is a slight abnormality that minimally affects work ability
regardless of age, education, and experience.”32

of disability.” Id. (internal quotations omitted). During Step Three of the analysis, the ALJ determines whether the
claimant has an impairment that satisfies one of the criteria of an impairment listed in Appendix 1 and that also
meets the durational requirement. See 20 C.F.R. § Part 404, Subpart P, Appendix 1. A claimant is deemed disabled
if she or he has an impairment that meets both the listing and the duration requirement. For Step Four, the ALJ must
determine if the claimant's residual functional capacity allows him to do past relevant work. Colvin, 475 F.3d at 740.
Finally, in Step Five, the ALJ must determine whether the claimant is able to do any other work considering his
residual functional capacity, age, education, and work experience. Id. “For the fifth and final step, even if the
plaintiff's impairment does prevent her from doing her past relevant work, if other work exists in the national
economy that plaintiff can perform, plaintiff is not disabled.” Id.
28
28 U.S.C. § 636(b)(1) (requiring de novo review of claimant’s objections to a report and recommendation).
29
Doc. 14.
30
Id. at 10.
31
20 C.F.R. § 404.1520(c).
32
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (citing Farris v. Sec’y of Health and Human Servs., 773 F.2d
85, 90 (6th Cir. 1985).

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Gwin, J.
In Maziarz v. Sec’y of Health and Human Servs., the Sixth Circuit held that even if the
ALJ errs by failing to identify a particular impairment as severe, the error is harmless as long as
the ALJ found at least one other severe impairment, continued the sequential analysis, and
addressed the “non-severe” impairments in determining the claimant’s RFC. 33
Here, the ALJ determined that Plaintiff had the following severe impairments: dysthymia,
generalized anxiety disorder, and a borderline personality disorder.34 Although the ALJ
determined that Plaintiff’s back pain was not a severe impairment,35 the ALJ continued his
analysis,36 and considered Plaintiff’s back pain in his RFC assessment.37 Therefore, even if the
ALJ should have deemed Plaintiff’s back pain a severe impairment, such an error is not
reversible under Maziarz.
The Court acknowledges that there is competing evidence as to whether Plaintiff’s back
pain was a severe impairment.38 However, in reviewing an ALJ’s decision, this Court does not
supplant the ALJ’s judgment for its own. Rather, as long as substantial evidence supports the
ALJ’s decision, reversal should not be given.39
The ALJ reasonably concluded that Plaintiff’s back pain was not a severe impairment.
The ALJ primarily relied on inconsistencies between Plaintiff’s word and deed regarding his
back pain. Specifically, while Plaintiff testified as to extreme pain in his back, he skipped

837 F.2d 240, 244 (6th Cir. 1987); see also Swartz v. Barnhart, 188 F. App’x 361, 368 (6th Cir. 2006).
Doc. 14 at 15.
35
Id. at 16.
36
Id. at 17-22.
37
Id. at 19-20. Specifically, the ALJ stated that although Plaintiff reported limitations in daily functions like getting
dressed, medical treatment history did “not support[]” those claims. Id. The ALJ also noted that Plaintiff had “very
little treatment for his reported back . . . pain . . . [and] failed to attend his physical therapy sessions, which indicates
that his physical condition is likely not as limiting as he alleged.” Id. at 20.
38
See, e.g., Doc. 14 at 94 (Plaintiff’s testimony regarding sharp pain in his back); 144 (evaluation by Dr. Elizabeth
Das, M.D., concluding that Plaintiff’s back pain was severe).
39
See Siterlet, 823 F.2d at 920.
33
34

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physical therapy appointments meant to treat his back problems.40 From this evidence, the ALJ
permissibly determined that Plaintiff’s back pain was not severe.41
Because the ALJ’s conclusion was supported by substantial evidence, the Court adopts
the R&R and overrules Plaintiff’s objection on this point.
Gastrointestinal Issues
Plaintiff next argues that the ALJ’s mistake regarding Plaintiff’s date last insured led the
ALJ to incorrectly conclude that Plaintiff’s gastrointestinal issues were not a severe
impairment.42 Specifically, Plaintiff argues that because of the last insured mistake, the ALJ
failed to consider six months of Plaintiff’s medical records, that the claimant argues tended to
prove the severity of his gastrointestinal issues.43
The Commissioner admits that the ALJ identified the wrong date, but argues the error
was harmless.44 This Court agrees.
Generally, an ALJ does not consider evidence of a claimant’s disability after the date last
insured in determining whether to award benefits.45 Therefore, the ALJ may have ignored
potentially relevant post-March 31, 2013 evidence.
Using an incorrect date last insured can be harmless error, however, if failure to consider
excluded evidence did not prejudice Plaintiff.46

40

Doc. 14 at 16, 19-20.
Strong v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir. 2004) (citing Williams v. Bowen, 790 F.2d 713, 715
(8th Cir. 1986)) (“[W][hen a claimant alleges pain so severe as to be disabling, there is a reasonable expectation that
the claimant will seek examination or treatment. A failure to do so may cast doubt on a claimant’s assertions of
disabling pain.”).
42
Doc. 14 at 10.
43
Id. at 11. The ALJ mistakenly identified Plaintiff’s date last insured as March 31, 2013, when in reality it was
September 31, 2013.
44
Doc. 17 at 15.
45
Bagby v. Harris, 650 F.2d 836, 839 (6th Cir. 1981); see also Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845
(6th Cir. 2004) (“Evidence of disability obtained after the expiration of insured status is generally of little probative
value.”).
46
See, e.g., Odette v. Comm’r of Soc. Sec., No. 09-CV-11484, 2010 WL 2104300, at *10 (E.D. Mich. May 3, 2010),
report and recommendation adopted, No. 09-11484-BC, 2010 WL 2104234 (E.D. Mich. May 24, 2010) (“Even if it
41

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Here, the ALJ considered evidence of Plaintiff’s gastrointestinal problems between
March 31 and September 31, 2013. It appears that the only significant medical evidence
regarding Plaintiff’s gastrointestinal issues between the incorrect date last insured and the correct
date is a July 2013 endoscopy.47
The ALJ considered this evidence in his opinion. Citing the July 2013 medical records,
he wrote that “[a]n upper endoscopy showed mild chronic gastritis . . . [but] there is no objective
evidence to suggest that the claimant’s gastritis causes him pain that would prevent him from
working or that it would cause any functional limitations in the workplace.”48
Therefore, because the ALJ considered the only relevant evidence between the incorrect
and correct insured date, no prejudice to Plaintiff occurred. Accordingly, this Court agrees with
the R&R49 and finds the misidentification of Plaintiff’s last date insured to be harmless error.
B. Evaluation of Dr. Halas’ Assessment
Plaintiff last argues that the ALJ wrongfully discredited clinical psychiatrist Richard C.
Halas’ opinion regarding Plaintiff’s mental health and work capability.50
State expert Dr. Halas concluded that Plaintiff suffers from dysthymia, generalized
anxiety disorder, borderline personality disorder, and a global assessment functioning score of
45, which indicates “serious symptoms.”51 The ALJ was unpersuaded by Dr. Halas’ opinion

were in error, the conclusion that Plaintiff’s date last insured is December 31, 2008 is harmless error where the onset
date was prior to the date last insured. The ALJ’s denial of disability benefits did not turn on Plaintiff’s date last
insured.”).
47
Doc. 13 at 291, 305. Plaintiff also cites other evidence that the ALJ failed to consider, Doc. 14 at 11-12, but it
post-dates the correct last date insured and is therefore inapplicable to the Court’s analysis, id. at 11 (citing Doc. 13
at 333, 352-353, 360) (October 2013 medical records).
48
Doc. 13 at 16 (citing id. at 287-98, 305).
49
Doc. 19 at 24.
50
Doc. 14 at 12.
51
Doc. 13 at 17.

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because Plaintiff had not previously sought mental health treatment, and Plaintiff himself
ascribed his struggles to physical rather than emotional illness.52
In White v. Comm’r of Soc. Sec., the Sixth Circuit found that “ALJ’s must be careful not
to assume that a patient’s failure to receive mental-health treatment evidences a tranquil mental
state. For some mental disorders, the very failure to seek treatment is simply another symptom of
the disorder itself.”53
However, courts generally do not reverse an ALJ’s decision when there is no evidence
connecting Plaintiff’s failure to seek treatment to the mental health disorder itself.54 Here,
Plaintiff suggests no evidence that his failure to seek treatment is attributable to his mental health
disorders. Thus, the ALJ’s conclusion that Plaintiff’s failure to seek treatment discredited his
claimed mental illness is harmless.
Plaintiff also argues that the ALJ failed to address inconsistencies between Dr. Halas’
opinion and state agency reviewers’ opinions. State officials that reviewed Dr. Halas’ opinion
gave it “great weight,”55 yet arguably found Plaintiff to be more work capable than Dr. Halas had
found. Plaintiff argues that the ALJ adopted the reviewers’ opinions without justifying the
discrepancy between their opinion and Dr. Halas’ opinion.56
The discrepancy between Dr. Halas’ and the reviewers’ opinion is less pronounced than
Plaintiff suggests. While Dr. Halas used more severe language in outlining Plaintiff’s

Id. at 17, 20 (ALJ noting that Dr. Halas’ opinion was “afforded partial weight”).
572 F.3d 272, 283 (6th Cir. 2009) (citing Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009)).
54
See, e.g., Bass v. Colvin, No. 3:14CV109, 2015 WL 1299266, at *22 (N.D. Ohio Mar. 23, 2015) (“[A]n ALJ
should consider whether a claimant’s failure to obtain treatment is another symptom of his impairment, but the
record must contain evidence supporting such a finding.”).
55
See, e.g., Doc. 13 at 93.
56
Doc. 20 at 3-4 (citing Doc. 13 at 93).
52
53

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limitations,57 the reviewers determined that Plaintiff had “concentration and persistence
limitations . . . social interaction limitations,” and “markedly limited” ability to “interact
appropriately with the general public.”58
When comparing the two opinions, the ALJ’s failure to specifically account for
differences between Dr. Halas’ and the reviewers’ opinion is not significant. Furthermore,
although the ALJ gave only “partial weight” to Dr. Halas’ opinion, portions of that opinion
found their way into the ALJ’s mental RFC.59 The Court finds that Plaintiff was not prejudiced
by any discounting of Dr. Halas’ opinion.
V. Conclusion
For the foregoing reasons, this Court OVERRULES Plaintiff’s objections, ADOPTS the
Magistrate Judge’s Recommendation, and AFFIRMS the ALJ’s denial of benefits.
IT IS SO ORDERED.

Dated: February 13, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Doc. 13 at 239-40 (Dr. Halas finding Plaintiff has (1) problems “understanding, remembering, and carrying out
instruction,” (2) “significant difficulties” in “responding appropriately to supervision and to coworkers,” and (3)
“severe problems” with “responding appropriately to work pressures”).
58
Id. at 79-80.
59
Compare Doc. 13 at 239-240 (Dr. Halas finding Plaintiff has “significant difficulties” in “responding
appropriately to supervision and to coworkers,” and “severe problems” with “responding appropriately to work
pressures”) with id. at 19 (ALJ finding Plaintiff to be “limited to simple, routine, low-stress work, which means that
. . . he is precluded from work done in public and from work that involves interaction with the public . . . more than
superficial interaction with supervisors and co-workers . . .[and] from tasks that involve arbitration, negotiation,
confrontation, directing the work of others, or being responsible for the safety of others.”).
57

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