Malicoat v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Terry Lee Malicoat. IT IS RECOMMENDED THAT Defendant's decision be found to be SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED, and that this case be CLOSED. Objections to R&R due by 2/22/2019. Signed by Magistrate Judge Stephanie K. Bowman on 2/8/2019. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TERRY MALICOAT,

Case No. 1:17-cv-811

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Terry Malicoat filed this Social Security appeal in order to challenge the
Defendant’s finding that he is not disabled. See 42 U.S.C. §405(g). Proceeding through
counsel, Plaintiff presents five claims of error, all of which the Defendant disputes. For
the reasons explained below, I conclude that this case should be AFFIRMED because
the finding of non-disability is supported by substantial evidence in the administrative
record.
I. Summary of Administrative Record
On January 9, 2014, Plaintiff filed an application for Disability Insurance Benefits
(DIB) alleging a disability onset date of January 1, 2010. (Tr. 150-151). After Plaintiff’s
claims were denied initially and upon reconsideration, he requested a hearing de novo
before an Administrative Law Judge (“ALJ”). On December 16, 2016, ALJ Christopher
Tindale held an hearing at which Plaintiff appeared with counsel.

The ALJ heard

testimony from Plaintiff and an impartial vocational expert. On February 23, 2017, the ALJ
denied Plaintiff’s application in a written decision. (Tr. 25-36). Plaintiff now seeks judicial
review of the denial of his application for benefits.
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Plaintiff was born in 1965 and was 48 years old at the time of his date last insured.
He graduated from high school and has past relevant work as a pharmacy technician. He
alleges disability based primarily on his mental impairments.
Based upon the record and testimony presented at the hearing, the ALJ found
that Plaintiff had the following severe impairments: anxiety disorder, depressive disorder,
obesity and diabetes mellitus. (Tr. 27).

The ALJ concluded that none of Plaintiff’s

impairments alone or in combination met or medically equaled a listed impairment in 20
C.F.R. Part 404, Subp. P, Appendix 1. The ALJ determined that Plaintiff retains the
following residual functional capacity (“RFC”) to perform medium work with the following
limitations:
He is limited to simple, routine tasks consistent with unskilled work in a work
environment free of fast production rate of pace work. He can have no
contact with the public, occasional contact with supervisors, and only
occasional and superficial contact with co-workers. Superficial contact is
defined as no tandem tasks. He must work in a low stress environment
defined as having only occasional changes in the work setting and only
occasional decision making required.
(Tr. 30). Based upon the record as a whole including testimony from the vocational
expert, and given Plaintiff’s age, education, work experience, and RFC, the ALJ
concluded that Plaintiff is unable to perform his past relevant work. Nonetheless, there
are jobs that exist in significant numbers in the national economy that he can perform,
including such jobs as linen room attendant, stacker and equipment cleaner. Accordingly,
the ALJ determined that Plaintiff is not under disability, as defined in the Social Security
Regulations, and is not entitled to DIB. Id.
The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s
decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff
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argues that the ALJ erred by: 1) finding that Plaintiff could sustain a forty-hour work week;
2) failing to properly assess Plaintiff’s mental RFC; 3) failing to find that Plaintiff met Listing
12.06; 4) improperly assessing his credibility, pain and subjective complaints; and 5)
committing various vocational errors.
II. Analysis
A. Judicial Standard of Review
To be eligible for SSI or DIB a claimant must be under a “disability” within the
definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition
of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City
of New York, 476 U.S. 467, 469-70 (1986).

Narrowed to its statutory meaning, a

“disability” includes only physical or mental impairments that are both “medically
determinable” and severe enough to prevent the applicant from (1) performing his or her
past job and (2) engaging in “substantial gainful activity” that is available in the regional
or national economies. See Bowen, 476 U.S. at 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the court’s
first inquiry is to determine whether the ALJ’s non-disability finding is supported by
substantial evidence.

42 U.S.C. § 405(g).

Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation
omitted). In conducting this review, the court should consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports
the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial

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evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35
F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from
the courts. If the Secretary’s decision is supported by substantial evidence,
a reviewing court must affirm.
Id. (citations omitted).
In considering an application for disability benefits, the Social Security Agency is
guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if
the claimant is still performing substantial gainful activity; at Step 2, the Commissioner
determines if one or more of the claimant’s impairments are “severe;” at Step 3, the
Commissioner analyzes whether the claimant’s impairments, singly or in combination,
meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner
determines whether or not the claimant can still perform his or her past relevant work;
and finally, at Step 5, if it is established that claimant can no longer perform his or her
past relevant work, the burden of proof shifts to the agency to determine whether a
significant number of other jobs which the claimant can perform exist in the national
economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006);
20 C.F.R. §§404.1520, 416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she
is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits
must present sufficient evidence to show that, during the relevant time period, he or she
suffered impairment, or combination of impairments, expected to last at least twelve

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months, that left him or her unable to perform any job in the national economy. 42 U.S.C.
§ 423(d)(1)(A).
B. Specific Errors
At the outset the undersigned notes that an individual must be fully insured at the
time of disability to qualify for DIB, and the date last insured is the last day when an
individual is eligible for DIB. 42 U.S.C. §§ 423(a)(1)(A),(c)(1)(B); 20 C.F.R. §§ 404.101(a),
.131(a). The Act and the regulations require Plaintiff to prove disability prior to his date
last insured. Id. Plaintiff’s date last insured for DIB was December 31, 2013 (Tr. 27). As
such, the relevant period is January 1, 2010, Plaintiff’s alleged onset date, through
December 31, 2013, the date last insured.
1. Evaluation of Plaintiff’s mental impairments.
Plaintiff’s second and third assignments of error relate to the ALJ’s evaluation of
his mental impairments.1 First, Plaintiff contends that the ALJ failed to consider that
Plaintiff’s mental impairments would prevent him from sustaining a 40-hour work week.
Next, Plaintiff contends that the ALJ’s mental RFC finding did not comply with Agency
regulations. Last, Plaintiff contends that the ALJ erred in failing to find that Plaintiff’s
impairments met or equaled Listing 12.06. Plaintiff’s contentions are unavailing.
With respect to Listing 12.06, Plaintiff asserts that the ALJ failed to detail how the
listing was or was not met. Listing 12.06 states, in pertinent part, that:
The required level of severity for these disorders are met when the
requirements in both A and B are satisfied, or when the requirements in both
A and C are satisfied.
A. Medically documented findings of at least one of the following:

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 Plaintiff’s first assignment of error relates to the ALJ’s step-five finding and will be considered together
with Plaintiff’s final assignment of error for alleged vocational errors.  

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1. Generalized persistent anxiety accompanied by three out of four of the
following signs or symptoms: a. Motor tension; or b. Autonomic hyperactivity;
or c. Apprehensive expectation; or d. Vigilance and scanning; or
2. A persistent irrational fear of a specific object, activity, or situation which
results in a compelling desire to avoid the dreaded object, activity, or
situation; or
3. Recurrent severe panic attacks manifested by a sudden unpredictable
onset of intense apprehension, fear, terror and sense of impending doom
occurring on the average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of marked
distress; or
5. Recurrent and intrusive recollections of a traumatic experience, which are
a source of marked distress;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
OR
C. Resulting in complete inability to function independently outside the area
of one's home.
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.06.
Thus, to satisfy listing 12.06, Plaintiff must satisfy the requirements of paragraphs
A and B or of paragraphs A and C. On appeal, Plaintiff argues primarily that the ALJ erred
in finding that Plaintiff did not satisfy the requirements of paragraph C. In this regard,
Plaintiff asserts that his history of agoraphobia and anxiety meet these requirements.
Plaintiff’s contention lacks merit.

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Here, the ALJ’s decision indicates that he considered whether Plaintiff’s
impairments met or equaled the requirements for Listing 12.04 and 12.06.
The ALJ discussed each of the “B criteria,” determining that Plaintiff had moderate2
limitations in understanding, remembering, or applying information; moderate limitations
in interacting with others; moderate limitations in concentrating, persisting, or maintaining
pace; and moderate limitations in adapting or managing oneself. (Tr. 29). With respect to
the paragraph C criteria, the ALJ found that “there is no evidence of chronic mental
disorder of at least two years; duration with evidence of both medical treatment, mental
health therapy, psychosocial support(s), or highly structured setting(s) that is ongoing and
diminishes the symptoms and signs of the claimant’s mental disorder as well as evidence
of marginal adjustment, that is, minimal capacity to adapt to changes in environment. . .”
(Tr. 30).
Here, other than asserting that he suffers from anxiety and agoraphobia, Plaintiff
fails to provide any evidence that his impairments met the requirements of Listing 12.04
and/or 12.06. It is well established that a mere diagnosis or catalogue of symptoms does
not indicate functional limitations caused by the impairment. See Young v. Sec'y of Health
& Human Servs., 925 F.2d 146,151 (6th Cir.1990) (diagnosis of impairment does not
indicate severity of impairment). As such, Plaintiff fails to develop this argument in any
meaningful way. It is not the Court's function to comb through the entire record to develop
an argument on Plaintiff's behalf or to take the portions of the record cited by Plaintiff's
counsel and attempt to craft an argument that supports the general issues he referenced

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  Although the ALJ states at the end of the same paragraph that Plaintiff “has no more than mild limitations in 
understanding, remembering and applying information.” (Tr. 29).  

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in the most perfunctory manner. Gray v. Astrue, 4:09–CV–01468, 2010 WL 2106200
(N.D.Ohio Mar.31, 2010) report and recommendation adopted sub nom. Gray v. Comm'r
of Soc. Sec., 4:09CV1468, 2010 WL 2106196 (N.D.Ohio May 25, 2010) (citing
McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.1997) (“[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to put flesh on its bones.”). See also Hollon v. Comm'r of
Soc. Sec., 447 F.3d 477, 490 (6th Cir.2006) (“This challenge warrants little discussion, as
[plaintiff] has made little effort to develop this argument in her brief on appeal....”). For
these reasons, the undersigned finds that the ALJ properly determined that Plaintiff’s
impairments did not meet any listing.
Next, Plaintiff claims that the ALJ failed to properly articulate the basis for his
mental RFC assessment and the weight assigned to the mental health opinion evidence.
In this regard, Plaintiff argues that the ALJ failed to comply with SSR 96–8p by not giving
a specific “function by function” assessment of his RFC with respect to his mental
impairments.
Here, in formulating Plaintiff’s RFC the ALJ afforded little weight to the state
agency physicians and state agency psychologists who opined that there was insufficient
evidence prior to Plaintiff’s date last insured to fully evaluate Plaintiff’s functional abilities.
(Tr. 33). The ALJ further gave some weight to the Global Assessment Functioning (GAF)
scores of 60 and 65 provided by Dr. Eggerman in December 2013.3

3

 GAF scores of 51‐60 are indicative of moderate symptoms (e.g. flat affect and circumstantial speech, occasional 
panic attacks) or moderate difficulty in social, occupational, or school functioning.  GAF scores of 61‐70 indicate 

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The ALJ noted that despite complaints of disabling mental limitations, Plaintiff did not
seek mental health treatment until December 2013. In this regard, the ALJ noted that the
December 2013 visit was motivated by Plaintiff’s desire to apply for disability rather than
treatment as he saw Dr. Eggerman on only one occasion. (Tr. 33-34). The record
indicates that Plaintiff improved with psychotropic medication. The ALJ also noted that
Dr. Seibert’s office notes show that that he did not support Plaintiff’s pursuant of disability.
The ALJ considered all of the evidence of record and, as the finder of fact,
reasonably concluded that Plaintiff could perform medium work that involved simple,
routine tasks consistent with unskilled work; no fast production rate pace work; no contact
with the public, occasional contact with supervisors, and only occasional and superficial
contact (defined as no tandem tasks) with co-workers (Tr. 30). Additionally, the ALJ found
that Plaintiff must work in a low-stress environment defined as having only occasional
changes in the work setting and only occasional decision making (Tr. 30). Plaintiff
appears to argue that the ALJ’s RFC assessment is not substantially supported because
it is not based a specific medical opinion. Plaintiff’s contention lacks merit.
Contrary to Plaintiff’s argument, an ALJ is not required to base each RFC limitation
on a specific medical opinion, so long as the RFC is supported by the record as a
whole. See Coldiron v. Com’r, 391 Fed. Appx. 435, 439 (6th Cir. 2010); Poe v. Com’r of
Soc. Sec., 342 Fed. Appx. 149, 157 (6th Cir. 2009) (“[A]n ALJ does not improperly assume
the role of a medical expert by assessing the medical and non-medical evidence before
rendering a residual functional capacity finding.”); accord Clemow v. Com’r, 2018 WL

some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational or school 
functioning.   

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1083494 at *8 (S.D. Ohio Feb. 28, 2018); see also Hensley v. Colvin, 829 F.3d 926, 932
(8th Cir. 2016).
Here, the ALJ’s RFC assessment is supported by the Plaintiff’s medical records,
testimony and daily activities. As noted by the ALJ, Plaintiff cared for his dogs and took
them for walks, watched television and Youtube, attended his doctor appointments, and
drove at times. (Tr. 29). Plaintiff started receiving medications for his mental condition
from Dr. Seibert, his primary care physician, in July 2013. (Tr. 229). He claimed he had
issues leaving his house (Tr. 229, 234), and requested to see a psychiatrist. (Tr. 241). At
Plaintiff’s request, Dr. Seibert referred him to psychiatrist Dr. Eggerman, who Plaintiff did
not visit until the end of the relevant period in December 2013. (Tr. 29, 223). Plaintiff
reported to Dr. Eggerman that he had not worked since 2006, when he was fired after
missing a shift. (Tr. 224). He left his previous job because he did not like the pay and he
left the job before that because he was not happy. (Tr. 224). Dr. Eggerman reported that
Plaintiff’s agoraphobic behavior emerged after quitting work and having a less structured
schedule. (Tr. 223). Plaintiff had only one visit with Dr. Eggerman but, he continued to
receive medications from his primary care physician Dr. Seibert. (Tr. 29). Dr. Seibert’s
treatment notes after the relevant period mostly concern Plaintiff’s physical condition, not
his mental health. (Tr. 268, 317, 327, 334, 340). Plaintiff visited another psychiatrist twice
in 2016, well after the relevant period. (Tr. 353-62).
In light of the foregoing, the undersigned finds that the ALJ’s RFC assessment is
substantially supported and should not be disturbed.

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2. Credibility
Plaintiff argues next that the ALJ improperly evaluated Plaintiff’s credibility.
Specifically, Plaintiff contends that the ALJ erred in discounting Plaintiff’s subjective
complaints of disabling mental impairments. Plaintiff also contends that the ALJ failed to
discuss the findings of the state agency psychologists, who found Plaintiff to be partially
credible. Plaintiff also asserts that that ALJ the failed to consider the effectiveness and
side effects of his medications. Plaintiff’s contentions are again not well-taken.
An ALJ's credibility assessment must be supported by substantial evidence, but
“an ALJ's findings based on the credibility of the applicant are to be accorded great weight
and deference, particularly since an ALJ is charged with the duty of observing a witness's
demeanor and credibility.” Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th
Cir.1997). Further, a credibility determination cannot be disturbed “absent a compelling
reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir.2001). Thus, it is proper for an ALJ
to discount the claimant's testimony where there are contradictions among the medical
records, his testimony, and other evidence. Warner v. Comm'r of Soc. Sec., 375 F.3d at
387, 392 (6th Cir.2004).
The ALJ's credibility decision must also include consideration of the following
factors: 1) the individual's daily activities; 2) the location, duration, frequency, and intensity
of the individual's pain or other symptoms; 3) factors that precipitate and aggravate the
symptoms; 4) the type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms; 5) treatment, other than
medication, the individual receives or has received for relief of pain or other symptoms;
6) any measures other than treatment the individual uses or has used to relieve pain or
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other symptoms; and 7) any other factors concerning the individual's functional limitations
and restrictions due to pain or other symptoms. See 20 C.F.R. §§ 404.1529(c),
416.929(c); SSR 96–7p. Here, the ALJ’s credibility analysis properly considered these
factors.
As noted by the Commissioner, the state agency psychiatrists found that Plaintiff
was partially credible (Tr. 77, 85), which is consistent with the ALJ’s determination. (Tr.
31-32). In addition, the state agency psychiatrists noted that Plaintiff had positive
reactions to medication, as the ALJ also noted. (Tr. 32, 34). Furthermore, as detailed
above, despite the state agency doctors finding insufficient evidence, the ALJ found
otherwise based on the additional evidence received at the hearing level, including
Plaintiff’s testimony related to his mental impairments. (Tr. 33, 40-71). The ALJ also
properly considered the level and type of treatment Plaintiff sought and obtained in
determining whether Plaintiff was disabled. Plaintiff did not require or seek frequent
treatment; rather, he received little treatment during the relevant period.
Additionally, as outlined above, the ALJ properly considered that Plaintiff’s
condition improved with medication. (Tr. 77, 85). Dr. Eggerman noted that Plaintiff
reported benzodiazepines helped him, suggesting the medications were effective. (Tr. 32,
223). The ALJ noted that Plaintiff alleged drowsiness and fatigue from Valium, he reported
that he had taken it for twelve years and he stopped taking it in 2013. (Tr. 32, 205).
While Plaintiff may disagree with the ALJ, the ALJ’s subjective symptom analysis
was well within the zone of reasonable choices. See Mullen v. Bowen, 800 F.2d 535, 595
(6th Cir. 1986). The substantial evidence standard presupposes that there is a zone of
choice within which the decision maker can go either way, without interference by the
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courts. Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). Because the
ALJ made a reasoned and reasonable decision supported by substantial evidence, the
ALJ’s credibility assessment should be afforded its due deference and his decision should
be affirmed.
3. Vocational Errors
Plaintiff's first and final assignment of error asserts that the ALJ committed various
vocational errors. Namely, Plaintiff asserts that the ALJ's hypothetical questions to the
vocational expert failed to consider Plaintiff’s inability to sustain a 40-hour work week.
Plaintiff further argues that the hypothetical questions failed to considered the number of
days Plaintiff would be absent and the extra breaks he would need due to his anxiety.
Plaintiff's assertions are unavailing.
The Sixth Circuit has held that a hypothetical question must only include a
claimant's credible impairments and limitations. See Smith v. Halter, 307 F.3d 377, 378
(6th Cir.2001) (emphasis added); Casey v. Sec'y of Health & Human Servs., 987 F.2d
1230, 1235 (6th Cir.1993). Here, the ALJ's hypothetical question was supported by the
medical record and other evidence, and Plaintiff has not shown that he had limitations
greater than those reflected in the ALJ's hypothetical question and eventual RFC finding.
However, as discussed above, the medical evidence did not support these alleged
limitations, and there is no credible medical opinion that shows that Plaintiff had greater
limitations than the ALJ found. Accordingly, the ALJ's decision is substantially supported
in this regard.
III. Conclusion and Recommendation
For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s
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decision be found to be SUPPORTED BY SUBSTANTIAL EVIDENCE, and
AFFIRMED, and that this case be CLOSED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TERRY MALICOAT,

Case No. 1:17-cv-811

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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