White v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order Adopting Report and Recommendation 17 to affirm the Commissioner's denial of Plaintiff's Claim 1 . Judge Christopher A. Boyko on 9/10/2013. (R,D)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LARRY WHITE, JR.,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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CASE NO. 5:12CV1637
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon Plaintiff’s Objection (ECF DKT #18) to
the Report and Recommendation (ECF DKT #16) of Magistrate Judge Limbert who
recommended that the Court affirm the Commissioner’s decision denying Plaintiff’s Claim
for Supplemental Security Income (“SSI”). For the following reasons, the Court ADOPTS
Magistrate Judge Limbert’s Report and Recommendation and AFFIRMS the
Commissioner’s denial of Plaintiff’s Claim for Supplemental Security Income.
BACKGROUND
The following is a factual synopsis of Plaintiff’s claims. The Magistrate Judge’s
Report and Recommendation provides a more complete and detailed discussion of the
facts. Due to the nature of this case, there is an extensive medical background. For a
complete overview of Plaintiff’s medical history, see Magistrate Judge Limbert’s Report
and Recommendation, which refers to the original Complaint and incorporates all
documents in relation to the dispute.
On June 24, 2009, Plaintiff filed his application for SSI, alleging a disability onset
date of January 1, 1991, due to a brain aneurysm, anxiety, asthma and chronic back pain.
After initial denial by the state agency, and denial upon reconsideration, Plaintiff
requested a hearing. An administrative hearing was held before an Administrative Law
Judge (“ALJ”) on February 11, 2011. At his administrative hearing, Plaintiff was
represented by counsel.
On March 15, 2011, the ALJ issued a decision denying benefits. Plaintiff
requested review of the ALJ’s decision by the Appeals Council. The Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner.
STANDARD OF REVIEW
The 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). In conducting judicial review, the 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] as to any fact if supported by substantial evidence shall be
conclusive . . .” McClanahan, 474 F.3d at 833 (citing 42 U.S.C. § 405(g)). “Substantial
evidence is more than a scintilla of evidence but less than a preponderance and is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” McClanahan, 474 F.3d at 833 (citing Besaw v. Sec’y of Health and Human
Servs., 966 F.2d 1028, 1030 (6th Cir. 1992)). “The findings of the Commissioner are not
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subject to reversal merely because there exists in the record substantial evidence to
support a different conclusion . . . This so because there is a ‘zone of choice’ within which
the Commissioner can act, without the fear of court interference.” McClanahan, 474 F.3d
at 833 (citing Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted)).
LAW AND ANALYSIS
The Commissioner uses a five-step sequential evaluation process to evaluate a
SSI claim:
1.
An individual who is working and engaging in substantial gainful activity
will not be found to be “disabled” regardless of medical findings (20 C.F.R.
§§ 404.1520(b) and 416.920(b) (1992));
2.
An individual who does not have a “severe impairment” will not be found to
be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));
3.
If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));
4.
If an individual is capable of performing the kind of work he or she has done
in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));
5.
If an individual’s impairment is so severe as to preclude the performance of
the kind of work he or she has done in the past, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed (20 C.F.R. §§
404.1520(f) and 416.920(f) (1992)).
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the evidentiary
burden in the first four steps and the Commissioner has the burden in the fifth step.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
In his March 15, 2011 decision, the ALJ determined that Plaintiff suffered from
residual deficits stemming from aneurysm repair, depression, and personality disorder,
which all qualified as severe impairments under 20 C.F.R. § 416.920, et seq. The ALJ
then determined that Plaintiff did not have an impairment or combination of impairments
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that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (“Listings”). The ALJ partially discounted Plaintiff’s allegations
that his symptoms limited his abilities and concluded that Plaintiff had the residual
functional capacity (“RFC”) to perform light work with the following limitations: frequently
climbing ramps and stairs; never crouching; never climbing ladders, ropes, or scaffolds;
occasionally stooping, kneeling or crawling; having a sit-stand option; performing
slower-paced, repetitive, routine tasks and some complex tasks; having no interaction
with the general public; having only occasional contact with co-workers and supervisors;
and he could engage in telephone contact. The ALJ found that Plaintiff could not
return to his past relevant work, but he could perform other jobs existing in significant
numbers in the national economy.
The Magistrate Judge determined that the ALJ’s decision is supported by
substantial evidence. The Magistrate Judge found that any errors the ALJ committed in
the decision were harmless and did not result in reversible error. Plaintiff asserts that the
ALJ committed reversible error when he attributed “significant” and “great” weight to the
opinions of state agency medical sources Dr. Castor, Dr. Waggoner and Dr. Goldsmith,
but then failed to incorporate their limitations for Plaintiff into his RFC. A claimant's RFC
is an assessment of “the most [he] can still do despite [his] limitations.” 20 C.F.R. §
416.945(a)(1). In assessing the RFC, the ALJ considers all of the relevant medical and
other evidence. 20 C.F.R. §416.945(a)(3). While the ALJ must consider and weigh the
medical opinions of both treating and agency medical sources, the final responsibility for
determining the claimant’s RFC is expressly reserved to the Commissioner. 20 C.F.R. §
416.927(d)(2).
In his Objection to Report and Recommendation, Plaintiff asserts that the ALJ’s 1)
mischaracterization of an examining doctor’s opinion with regard to abilities to stand and
lift, 2) omission of activities of daily living after a major head surgery, 3) improper focus on
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allegations of short term memory loss versus long term memory capabilities, 4)
mischaracterizing Plaintiff’s inability to conduct in-depth research, and 5)
mischaracterizing the nature of Plaintiff’s so-called “conservative” treatment, are not
harmless errors and should require remand.
The Court will review each objection to the ALJ’s decision. First, Dr. Castor, the
agency examining physician who provided a physical examination and assessment,
concluded that Plaintiff could tolerate two hours or less of standing during an eight-hour
workday and could sit for up to eight hours during the workday. He also concluded that
Plaintiff’s employment would be limited by mobility and anything that would require him to
crouch down and stand back up again. Dr. Castor indicated that Plaintiff had trouble
picking up heavy items weighing more than ten pounds. The ALJ accorded “significant”
weight to his consultative assessment of Plaintiff’s physical conditions.
However, even though the ALJ erred when omitting the standing limitation in his
decision, it appears that the ALJ clearly considered this limitation as evidenced by the
transcript of the ALJ hearing where all of the hypothetical individuals that the ALJ
presented to the vocational expert (“VE”) contained this limitation. The Commissioner of
Social Security states in her merits Brief that the ALJ was correct in concluding that
Plaintiff could perform light exertional work that involved standing and/or walking with
normal breaks of two hours in an eight-hour work day. The Court agrees that this error is
harmless.
The ALJ’s decision stated that Dr. Castor determined that Plaintiff could lift heavy
items greater than ten pounds. Clearly, the ALJ erred. However, the Court agrees with
the Magistrate Judge that such error was harmless as substantial evidence supports the
ALJ’s lifting restriction for Plaintiff. The Magistrate Judge points out that Dr. Castor did
not limit Plaintiff’s ability to lift and carry objects in his opinion, and that no physician
limited Plaintiff’s ability to lift and carry objects. The agency reviewing physicians found
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that Plaintiff had no severe medically determinable physical impairment, but the ALJ
nevertheless accepted Plaintiff’s testimony that he had difficulty lifting and restricted
Plaintiff’s RFC to light work. The Court finds that substantial evidence supports the ALJ’s
light work lifting requirement for Plaintiff, and any error by the ALJ as to Plaintiff’s ability to
lift and carry objects was harmless.
Second, Plaintiff objects to the Magistrate Judge’s recommendation to the Court
that substantial evidence supports the ALJ’s credibility determination as to Plaintiff’s
activities of daily living, despite some differences between Plaintiff’s answers on his
functional questionnaire and his testimony at the hearing. The ALJ found that Plaintiff’s
testimony regarding his daily living activities was inconsistent with the alleged severity of
his impairments. The Magistrate Judge thoroughly reviewed Plaintiff’s testimony
regarding his activities at the time of the hearing and those he reported performing in the
earlier questionnaire. The differences were insignificant, although Plaintiff asserts that
the ALJ’s use of the 2009 answers to the functional questionnaire casts doubt on the
accuracy of his credibility determination.
An ALJ’s assessment of a claimant’s credibility must be supported by substantial
evidence. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). The Court
agrees with the Magistrate Judge that substantial evidence supports the ALJ’s credibility
determination. The ALJ did not err in considering Plaintiff’s answers in the 2009
functional questionnaire because they were the activities reported by Plaintiff at a relevant
time period since his amended onset date was June 24, 2009, and the questionnaire was
completed on July 16, 2009. Since the ALJ had the opportunity to observe the Plaintiff in
person, a court reviewing the ALJ’s conclusion about the claimant’s credibility should
accord great deference to that determination. See Casey v. Secretary of Health and
Human Services, 987 F.2d 1234 (6th Cir. 1993).
Third, Plaintiff argues that the ALJ erred in discounting his credibility regarding his
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short-term memory loss. The ALJ reviewed the opinions of the state agency medical
sources and gave great weight to the opinion of Dr. Leidal, the agency examining
psychologist. Dr. Leidal had indicated upon examining Plaintiff that Plaintiff’s recall for
past and recent life events and the presentation of personal history was fair. The ALJ
also gave great weight to the opinions of Dr. Waggoner, the agency reviewing
psychologist, who opined that Plaintiff was not significantly limited in his abilities to
remember locations and work-like procedures, or in understanding and remembering very
short and simple instructions or detailed instructions. The Magistrate Judge concluded
that the ALJ relied upon the opinions of Dr. Leidal and Dr. Waggoner and adopted their
opinions by limiting Plaintiff to light work that involved slower-paced, repetitive and routine
tasks, some of which could be complex.
The ALJ noted that although Plaintiff complained of short-term memory loss and
stated that it was one of the reasons why he could not return to full-time work, Plaintiff
was able to explain in great detail all of the circumstances surrounding his extensive
criminal history and his work history. However, the ALJ did not discount Plaintiff’s
credibility regarding his short-term memory loss for this reason alone. The ALJ relied
upon evidence other than this statement regarding Plaintiff’s ability to recall more distant
events. Therefore, the Court agrees with the Magistrate Judge that substantial evidence
supports the ALJ’s determination that Plaintiff was not credible when claiming that he
could not return to full-time work because of his short-term memory loss.
Fourth, Plaintiff asserts that the ALJ’s statement in his decision commending
Plaintiff for his research and efforts, and notation that Plaintiff was well-studied about
traumatic brain injuries is reversible error. Plaintiff asserts that he did not research
traumatic brain injuries but merely related that which was told to him by his doctors and
given to him through informational fliers. The Magistrate Judge determined that no
reversible error resulted from the ALJ’s statement. The Court finds that even though the
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ALJ may have erred in his findings, “[n]o principle of administrative law or common sense
requires us to remand a case in quest of a perfect opinion unless there is reason to
believe that remand might lead to a different result.” Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir. 1989). In this case, the result would be the same because the ALJ’s
statement is irrelevant to the issues before the Court.
Fifth, Plaintiff objects to the ALJ’s characterizing Plaintiff’s treatment as being
conservative. In the Report and Recommendation, the Magistrate Judge agreed with
Plaintiff that his treatment for his brain aneurysm and repair have been far from
conservative. However, the Magistrate Judge concluded that despite the ALJ’s error
finding only conservative treatment, there is substantial evidence to support the ALJ’s
determination that Plaintiff was not disabled.
The ALJ’s decision outlined the testing and procedures that Plaintiff underwent
from 2004 through January of 2011. The ALJ cited to a December 27, 2010 CT scan of
Plaintiff’s brain which showed no clear evidence of active infectious or inflammatory
process. The ALJ also noted Plaintiff’s discharge from the nursing home in good
condition with good rehabilitation and progress potential after antibiotic treatment
following his August 2010 craniotomy. The ALJ also cited to the various clinical findings
that supported his determination, including Dr. Castor’s examination findings of a
completely normal neurologic exam in September of 2009, with grossly intact cranial
nerves, normal speech patterns, clear articulation, intact fine motor skills, no lower
extremity edema, intact peripheral pulses, ability to get on and off of the examination table
and touch his toes, and only some left leg weakness with flexion and extension and a
slight limp. The ALJ further cited to a primary care physician’s July 21, 2009 examination
finding that Plaintiff presented no evidence of grounds for disability. The ALJ also cited to
a CT scan and treatment notes showing that after his August 2010 craniotomy, Plaintiff
was doing well.
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The Magistrate Judge correctly concluded that the ALJ obviously considered all of
Plaintiff’s treatment relating to the residual effects from his aneurysm repair. The Court
agrees that the ALJ should not have stated that Plaintiff had only conservative treatment.
However, the Court finds that substantial evidence supports the ALJ’s determination that
Plaintiff was not disabled for Social Security purposes from his aneurysm repair and its
residual effects.
In his Objection, Plaintiff challenges the Magistrate Judge’s recommendation that
the ALJ’s evaluating and incorporating the opinions of Dr. Leidal, the agency examining
psychologist, are supported by substantial evidence. In his Report and Recommendation,
the Magistrate Judge thoroughly addressed Dr. Leidal’s findings, as well as the findings of
Dr. Waggoner, the agency reviewing psychologist. The ALJ gave great weight to both
doctors’ opinions.
Dr. Leidal’s opinion stated that Plaintiff’s ability to tolerate work stressors and to
respond to instructions was moderately to markedly impaired. The ALJ accordingly
limited Plaintiff to slower-paced light work with repetitive and routine tasks and some
complex tasks, and no interaction with the general public and only occasional contact with
co-workers and supervisors. Dr. Waggoner reviewed Dr. Leidal’s opinion and other
records. She opined that Plaintiff was only moderately impaired in accepting instructions
and responding appropriately to criticism from supervisors and to changes in the work
setting. Dr. Waggoner found that Plaintiff was able to perform routine and more complex
tasks in a slower-paced environment with no interaction with the general public.
Here, the ALJ determined a RFC for Plaintiff based on these opinions and other
medical and non-medical evidence of record. A claimant's RFC is not a medical opinion,
but an administrative determination reserved to the Commissioner. See 20 C.F.R. § 416
.945(e). Accordingly, the ALJ bears the ultimate responsibility for assessing a claimant's
RFC, based on all of the relevant evidence. See 20 C.F.R. § 416.945(a). The Magistrate
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Judge determined that the ALJ in this case rendered a RFC that was supported by
substantial evidence and the fact that he did not incorporate all of Dr. Leidal’s
limitations or explain why he did not adopt them in full was not legally required. The Court
agrees that the ALJ followed the required regulations and substantial evidence supported
his determinations.
CONCLUSION
Based upon the foregoing analysis, the Court finds that the Magistrate Judge
correctly applied the pertinent law, Plaintiff’s Objections are without merit and the
Commissioner’s decision denying SSI benefits is supported by substantial evidence.
Therefore, the Magistrate Judge’s Report and Recommendation (ECF DKT #17) is
ADOPTED and the Commissioner’s denial of Plaintiff’s Claim is AFFIRMED.
IT IS SO ORDERED.
DATE: September 10, 2013
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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