Livingston v. Commissioner of Social Security Administration

Filing 26

Memorandum Opinion: For the reasons discussed above, plaintiff's objections to the Report and Recommendation are overruled. The Report and Recommendation is accepted. Because the defendant's decision was supported by substantial evidence, that decision is affirmed, and this case is closed. (Related Doc. No. 22 ). Judge Sara Lioi on 3/5/2019. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAWN LIVINGSTON,
PLAINTIFF,
vs.
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.

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CASE NO. 1:18-CV-0482
JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is the Report and Recommendation of Magistrate Judge William H.
Baughman, Jr. (Doc. No. 22 [“R&R”]) with respect to plaintiff’s complaint for judicial review of
defendant’s denial of her application for Disability Insurance Benefits (“DIB”) under 42 U.S.C.
§§ 416(i), 423, 1381, et seq. (the “Act”). Plaintiff Dawn Livingston (“Livingston”) filed objections
to the R&R (Doc. No. 23 (“Obj.”)) and defendant filed a response to the objections (Doc. No. 25
(“Resp.”)1). Upon de novo review and for the reasons set forth below, the Court hereby overrules
plaintiff’s objections, accepts the R&R, and dismisses this case.
I.

BACKGROUND
Livingston filed her application for DIB on February 27, 2015. (Doc. No. 13 (Transcript

[“Tr.”]) 216–21.) As of her alleged disability onset date of January 6, 2014, she was 45 years old.
(Tr. 85.) She had a bachelor’s degree in English and her past relevant work included work as a file
clerk and as a researcher. (Doc. No. 15-2 at 1069.)

Defendant’s response adds nothing to the analysis, as it merely “stands on the merits of [defendant’s] brief[.]” (Resp.
at 1139.) [All page number references herein are to the page identification number generated by the Court’s electronic
docketing system.]
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After Livingston’s DIB application was denied initially and upon reconsideration, she
requested a hearing before an Administrative Law Judge (“ALJ”). (Id. 129–42; 144–56; 178.) The
hearing was conducted on January 24, 2017; plaintiff appeared and was represented by counsel.
The hearing transcript is in the record. (Id. 97–128.) On April 25, 2017, the ALJ issued his
decision, determining that Livingston was not disabled under the Act. (Id. 69–91.)
Livingston timely filed the instant action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review. Represented by counsel, Livingston filed a brief on the merits (Doc. No.
15 (“Pl. Br.”)), defendant filed a response brief on the merits (Doc. No. 18 (“Def. Br.”)), and
Livingston filed a reply (Doc. No. 19 (“Reply”)).
On December 21, 2018, Magistrate Judge Baughman issued his R&R, recommending that
defendant’s decision be affirmed because substantial evidence supported the ALJ’s finding of no
disability.
II.

DISCUSSION
A.

Standard of Review

This Court’s review of the Magistrate Judge’s R&R is governed by 28 U.S.C. § 636(b),
which requires a de novo decision as to those portions of the R&R to which objection is made.
“An ‘objection’ that does nothing more than state a disagreement with a magistrate’s suggested
resolution, or simply summarizes what has been presented before, is not an ‘objection’ as that term
is used in this context.” Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). See also
Fed. R. Civ. P. 72(b)(3) (“[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to[]”); Local Rule 72.3(b) (any objecting party
shall file “written objections which shall specifically identify the portions of the proposed findings,
recommendations, or report to which objection is made and the basis for such objections[]”).
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Judicial review is limited to a determination of whether the ALJ applied the correct legal
standards and whether there is “substantial evidence” in the record as a whole to support the
decision. 42 U.S.C. § 405(g); Longworth v. Comm’r Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir.
2005). “Substantial evidence is defined as ‘more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). If there is substantial
evidence to support the defendant’s decision, it must be affirmed even if the reviewing court might
have resolved any issues of fact differently and even if the record could also support a decision in
plaintiff’s favor. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986);
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (“The findings of the Commissioner are not
subject to reversal merely because there exists in the record substantial evidence to support a
different conclusion.”) (citations omitted).
B.

Analysis

Livingston’s objections focus on the R&R’s discussion and conclusions regarding the
ALJ’s determination that she does not meet or equal Listing 12.10 (Autism Spectrum Disorder)
and on the ALJ’s failure to cite specific record evidence in support of the weight he assigned to
the opinion of her treating physician, Dr. Maksimowski.
1. Objection 1 - Use of Incorrect Factors for Listing 12.10
Autism spectrum disorders are characterized by:
qualitative deficits in the development of reciprocal social interaction, verbal and
nonverbal communication skills, and symbolic or imaginative activity; restricted
repetitive and stereotyped patterns of behavior, interests, and activities; and
stagnation of development or loss of acquired skills early in life. Symptoms and
signs may include, but are not limited to, abnormalities and unevenness in the
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development of cognitive skills; unusual responses to sensory stimuli; and
behavioral difficulties, including hyperactivity, short attention span, impulsivity,
aggressiveness, or self-injurious actions.
20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.10.
Autism Spectrum Disorder in Listing 12.10 is satisfied by meeting both A and B below:
A.

Medical documentation of both of the following:
1.
Qualitative deficits in verbal communication, nonverbal
communication, and social interaction; and
2.
Significantly restricted, repetitive patterns of behavior, interests, or
activities.

AND
B.

Extreme limitation of one, or marked limitation of two, of the following
areas of mental functioning (see 12.00F):
1.
Understand, remember, or apply information (see 12.00E1).
2.
Interact with others (see 12.00E2).
3.
Concentrate, persist, or maintain pace (see 12.00E3).
4.
Adapt or manage oneself (see 12.00E4).

(R&R at 1129 (citation omitted).) When addressing Listing 12.10, the ALJ stated as follows:
As to her autism spectrum disorder, the record shows that her condition is only mild
(Ex. 7F/3, 13). The record shows that the claimant has never had any type of
treatment or intervention related to an autism spectrum disorder (Ex. 5F/11 ). A
consultative examiner observed that when the claimant provides descriptions of
what she feels is an autism disorder it suggests that she has some insight related to
her strengths and weaknesses in learning (Ex. 5F/11). For example, she stated that
she knows she will learn better if instructions are demonstrated as opposed to
spoken (Ex. 5F/11). Moreover, the consultative examiner noted that the claimant
describes symptoms related to anxiety, which are not consistent with an autism
disorder (Ex. 5F/11). Similarly, despite evidence of difficulty concentrating, the
medical record does not support evidence of marginal adjustment and minimal
capacity to adapt to changes in environment or to demands that are not already part
of daily life. More specifically, the record is devoid of the following: significant
memory loss; disorientation; significant oddities of thought; frequent illogical
thinking; pervasive loss of interest in things; and hostility and irritability.
Additionally, in terms of the claimant’s mental functioning, there is no substantial
evidence that the claimant lacks knowledge of standards of neatness and decorum
or shows significant signs of tangential/circumstantial thought, loose associations,
homicidal ideation, excessive paranoia, or excessive hallucinations or delusions.
(Tr. 81 (emphasis in bold added).)
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Livingston asserts that “[t]he ALJ’s Listing 12.10 analysis was rendered ineffectual at best
by his use of incorrect factors such as hostility, significant memory loss, disorientation, and
irritability.” (Obj. at 1135 (citing Tr. 20)2.) She asserts that “[t]he Magistrate fails to address this
critical error in his [R&R][,]” (id.), despite the fact that she raised it in her brief on the merits (see
Doc. No. 15 (“Pl. Brief”) at 1045), and again in her reply brief (see Doc. No. 19 (“Reply”) at
1109).3 Livingston claims, in any event, that the record does show she struggles with irritability.
(Pl. Brief at 1045 (citations omitted).) As a result of the magistrate judge’s error, Livingston argues
that she is entitled to either an award of benefits or a remand for proper consideration of this listing.
It is unclear to the Court why the ALJ pointed to the criteria that are in bold text in the
quotation above addressing autism spectrum disorder. These criteria are not contained in the
relevant regulation. The criteria are more akin to the paragraph C criteria that are an alternative to
paragraph B for some other listings under which Livingston was assessed, in particular Listings
12.04 and 12.06. That said (and as noted by the R&R), the ALJ’s decision does separately address
all the paragraph B criteria and finds, based on substantial record evidence cited by the ALJ, that
Livingston’s mental impairments do not result in either one extreme limitation or two marked
limitations, as required to satisfy paragraph B of Listing 12.10. Therefore, even if the ALJ had
improperly applied paragraph C criteria to his analysis of Listing 12.10, that error was harmless in
view of Livingston’s inability to meet the paragraph B criteria.
This objection relating to use of improper criteria is overruled.

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The Objection actually incorrectly cites Tr. 24.

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Livingston is correct that the R&R does not address her assertion that the ALJ included incorrect criteria.

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2. Objection 2 - Failure to Support Weight Given Treating Physician
Livingston also objects to the R&R because it upheld the ALJ’s conclusion regarding the
weight given to the medical opinion of a treating source (Dr. Maksimowski) even though the ALJ
failed to cite to any specific evidence to support his conclusion. (Obj. at 1135–36.)
Under Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013), the ALJ is “required
to provide ‘good reasons’ for discounting the weight given to a treating-source opinion.” Id. at 376
(citation omitted). “These reasons must be ‘supported by the evidence in the case record, and must
be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave
to the treating source’s medical opinion and the reasons for that weight.’” Id. (citation omitted).
Here, the R&R concluded that, although not citing to specific evidence, in his “unified
statement[,]” “[t]he ALJ thoroughly explained the reasons for the weight assigned[]” and “cite[d]
several exhibits . . . that he found inconsistent with the severity of the limitations set forth in Dr.
Maksimowski’s opinions.” (R&R at 1130–31 (citing Tr. 19, 22).) According to the R&R, the goals
of Gayheart were met because “[t]he ALJ recognized Dr. Maksimowski as a treating source,
analyzed and discussed his opinions, and provided good reasons for the weight assigned.” (R&R
at 1131.)
“If the ALJ’s opinion permits the claimant and a reviewing court a clear understanding of
the reasons for the weight given a treating physician’s opinion, strict compliance with the rule may
sometimes be excused.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010).
This test is met here. Therefore, the Court finds no error in the R&R’s reasoning.
This objection is overruled.

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III.

CONCLUSION
For the reasons discussed above, plaintiff’s objections to the R&R are overruled. The R&R

is accepted. Because the defendant’s decision was supported by substantial evidence, that decision
is affirmed, and this case is closed.

IT IS SO ORDERED.
Dated: March 5, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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